Washington’s health-care workers have earned respect and admiration for their response to the coronavirus pandemic.
But even more than praise, these professionals deserve protection from potential civil liability claims directly related to the extraordinary working environment necessitated by COVID-19.
On Monday, Gov. Jay Inslee announced the state’s plan for resuming routine medical and dental care, two months after he directed providers to halt nonurgent services in order to conserve medical-system capacity, supplies and equipment for a potential surge in demand.
This directive is not a blanket approval but a cautious step. It requires medical and dental providers to work with local health jurisdictions to monitor community outbreaks and to adjust their workload accordingly. It requires them to have adequate supply of personal protective equipment, practice social distancing, check visitors for symptoms of COVID-19 and minimize in-person consultations when they can.
The directive’s stipulations attempt to mitigate the risks of reopening offices to a broader public. But there is another way the governor should help diffuse that risk — by providing targeted relief from potential civil liability claims.
In early April, dozens of health-related professional organizations, representing hospitals, care centers, nurses, doctors, pharmacists, specialists and others, asked the governor to expand liability protections for medical decisions and actions taken in good faith during the pandemic.
“As they respond to this crisis, providers are practicing health care in unprecedented circumstances and in unprecedented ways that may be seen to deviate from the prevailing standards of care,” they wrote.
“Physicians are making daily and hourly decisions, based on their best judgment about what procedures can be delayed,” they wrote. “Delay of a surgery to remove a slow growing cancer, delay of a diagnostic imaging procedure or changing a treatment plan to avoid surgery are all decisions that carry risks.”
The groups’ members also were concerned that reuse and rationing of personal protective equipment could lead to civil liability and professional censure, even though the unusual practice conformed with guidance from health officials. They warned that a lack of testing, changing guidance and testing protocols meant providers could not always accurately diagnose potentially infectious diseases. They advised that limits on visitors made it more difficult to communicate care planning and include families in decision-making, as is usually done.
The groups asked the governor to expand temporarily the liability protections offered to out-of-state professionals under the Uniform Emergency Volunteer Health Practitioner Act to in-state practitioners. The act does not protect gross negligence or willful or wanton misconduct.
According to researchers at the National Conference of State Legislatures, nearly a dozen governors around the country have extended some liability protections to medical providers during this crisis.
But in an April 23 letter, Inslee denied the request, writing that he didn’t see the need since the state had avoided overwhelming the medical system. State COVID-19 Health System Response Management Director Raquel C. Bono reiterated the governor’s position in an interview, saying the governor’s order never prevented doctors’ ability to take care of patients however they saw fit.
Even taking into account subsequent clarifying guidance, the governor’s order to halt nonurgent procedures thrust medical providers into unfamiliar territory, argues Taya Briley, executive vice president and corporate counsel for the Washington State Hospital Association.
When deferred even for the best of reasons, routine care can become urgent, even emergent care.
Of course, patients must be able to seek remedy for egregious errors and harm needlessly suffered — no liability limitations should unfairly limit legitimate claims.
But as health professionals continue providing lifesaving care to the best of their ability in this shifting environment, they deserve a modicum of certainty.