Congress is hurtling toward a nasty election-year clash over a potentially multi-trillion-dollar coronavirus relief package in the coming weeks, and the powerhouse provider lobby is working to capitalize on the melee to ensure ironclad protections from lawsuits.
Senate Majority Leader Mitch McConnell (R-Ky.) has positioned himself as providers' champion on legal protections. He has called for sweeping protections for all businesses—including healthcare workers and hospitals—a "red line" in the upcoming legislation, and is drafting a shield bill with Sen. John Cornyn (R-Texas).
Liability protections for healthcare providers are usually handled at the state level, and roughly two dozen states have scrambled to push special protection from lawsuits related to COVID-19. But hospitals, nursing homes and physicians are clamoring for a universal standard to ensure long-lasting, firm federal protections to underpin a widely varying patchwork of state measures. The state-level variation in liability protections provides a roadmap for what's at stake in the federal legislation.
Providers are leery that care decisions made while they were confronted with supply shortages, relaxation of some state licensure laws, and expansion of telehealth, not to mention continued unknowns about the virus itself, could expose them to costly lawsuits and drain already strained budgets.
But skeptics say liability protections that are too broad could take away patients' last line of defense and allow nursing homes in particular to get away with poor preparation and chronic understaffing. The vast majority of coronavirus-related lawsuits against providers so far have been filed against nursing homes, according to a COVID-19 complaint tracker maintained by the law firm Hunton Andrews Kurth. More than 40% of COVID-19 deaths have occurred in nursing homes, according to data compiled by The New York Times.
Barry Furrow, director of the health law program at Drexel University's law school, said the defenses providers would need are likely already embedded in common law, and that he's concerned that rhetoric around the higher risk of lawsuits is an overblown fear.
"Immunity is a gift that should be given … with awareness of how the tort system works," Furrow said.
As of publication deadline McConnell had not released the text of his liability legislation, but he has dropped hints about several issues that are notable for healthcare providers. He has also clarified that healthcare providers would not be protected in cases of gross negligence or intentional misconduct.
One of the most striking hints so far is that protections could span for five years, starting in December 2019, a month before the first U.S. case of COVID-19 was reported to the Centers for Disease Control and Prevention.
"You could expect it to cover the period from December 2019 up until about 2024," McConnell said in an appearance at Baptist Health Corbin hospital in Corbin, Ky., on July 13.
The extended timeline help to providers across the country, as many state protections are time-limited or connected to emergency declarations. A longer-lasting federal standard could give providers protection even after their respective state laws expire.
Also, the long-term effects of the virus are largely unknown. Claims for damages could be higher if kidney issues or lung damage, for instance, emerge after the immediate pandemic has technically ended, said Duane Morris partner Delphine O'Rourke.
The American Medical Association endorsed a bill by Rep. Phil Roe (R-Tenn.) that would extend protections 60 days past the end of a federal public health emergency to account for liability for injuries that may not be readily apparent or conditions that worsen as a result of delaying care.
Brian Lee, the executive director of the consumer advocacy group Families for Better Care, criticized the five-year timeline for protections and its supposed start date before the coronavirus was first reported in the United States. Lee said healthcare providers and nursing homes are using workers worthy of protections as an excuse to loosen institutional oversight.
"If you want to talk about revisionist history happening, that's pretty shocking," Lee said.
Providers want to maintain state-level liability wins, and McConnell seems sympathetic.
"Now I say to our members of the state legislature, we're not trying to rewrite state tort laws here, this is about the coronavirus only," McConnell said.
The healthcare industry would prefer that any federal liability shield allow for states to impose stricter standards. A coalition of roughly three dozen industry groups including leading lobbies for hospitals, nursing homes and physicians asked that stronger or broader state protections be allowed to remain in place under a federal shield in an April letter to McConnell and House Speaker Nancy Pelosi (D-Calif.).
It's typical for federal standards to allow states to provide their residents with more protections, said Buckner Wellford, the chairman of the advocacy department at Baker, Donelson, Bearman, Caldwell & Berkowitz. Wellford said early drafts he's seen of McConnell's legislation would allow for more protective state standards to remain in place.
A uniform baseline across the country could offer a floor of protections for providers that were allowed to practice across state lines during the pandemic. A legal gray area remains around which immunity standard would apply in those cases, said Valerie Gutmann Koch, director of law and ethics at the University of Chicago's MacLean Center for Clinical Medical Ethics.
A federal standard could be useful even in states with strong liability protections. The Greater New York Hospital Association drafted and lobbied for a provision included in New York's budget that provides some of the nation's strongest liability protections for healthcare workers, hospital boards and administrators, and nursing homes. The budget provides protections for "any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services" for COVID-19 patients.
But GNYHA is still pushing for federal protections because of concerns that the state immunity law could be modified by lawmakers or weakened by courts' interpretations, said GNYHA senior vice president and general counsel Laura Alfredo.
While a federal standard may not immediately change liability protections in states with strong coronavirus-specific liability shields, states without new protections specific to COVID-19 could enjoy clearer protections. For example, GOP-run Florida hasn't enacted additional protections despite early pressure from the state nursing home lobby.
Another important distinction for providers is the scope of protections—whether healthcare institutions would be protected instead of just individual practitioners, and what types of care would be protected.
"It covers everybody. Hospitals, doctors, nurses, businesses, schools, colleges, universities, K-12. Nobody should have to face an epidemic of lawsuits on the heels of the pandemic we already have related to the coronavirus," McConnell said.
Nearly half of states that enacted new, coronavirus-specific protections also included healthcare entities, according to an analysis from Gutmann Koch.
John Beyer, a medical malpractice defense attorney with Parker Poe Adams & Bernstein, said that extending protections could help hospitals during the COVID-19 pandemic because he expects to see more claims against providers' administrative policies as opposed to complaints against individual practitioners. Lawmakers in North Carolina, where Beyer is based, included healthcare entities in the state's COVID-19 civil immunity statute.
"With these administrative-type claims, it would be helpful to have some limited liability because this is such uncharted territory for all of us," Beyer said.
The healthcare industry supports liability protections for institutions as well as individual providers. The American Medical Association said broader protections are important because fighting lawsuits is expensive and time-consuming, and it exacts an emotional toll on physicians even if they eventually win.
State protections vary not just on the scope of institutions protected, but also the types of care. In McConnell's home state of Kentucky, liability protections only apply in cases of patients diagnosed with COVID-19. Several other states provided much broader shields that cover any medical services provided in support of the state's response to the COVID-19 pandemic, according to Gutmann Koch.
Experts warn that the scope of liability protections should be narrowly targeted.
James Hodge, the director of the Center for Public Health Law and Policy at Arizona State University, said the protections are controversial because healthcare providers likely already have protections under existing law that could accommodate the extenuating circumstances of a pandemic. A federal shield should balance protecting vulnerable healthcare workers while still incentivizing healthcare entities to adhere to crisis standards of care, Hodge said.
Gutmann Koch argued that any federal liability standard should still require hospitals and nursing homes to adhere to established crisis standards of care.
"It's important that we are not over-immunizing, and that we are not providing blanket protections," Gutmann Koch said.
Democrats not on board
Even if McConnell proposes liability protections providers support, the measures could get watered down during negotiations with congressional Democrats. Senate Democrats have shown in prior, less polarized COVID-19 legislative skirmishes that they are willing to block relief bills to extract concessions from Republicans.
Pelosi has said Democrats won't support liability protections, and is instead pushing a policy that would force the Occupational Safety and Health Administration to require healthcare providers to institute infection prevention standards. Hospitals are opposed to Pelosi's push.
"We think there is a path to talk about protecting businesses and workers and customers and customers who come in. That is our OSHA provision," Pelosi told reporters on July 9.