Massachusetts Medical Society: Testimony in Support of An Act to Provide Liability Protections for Health Care Workers and Facilities During the COVID-19 Pandemic

Testimony in Support of An Act to Provide Liability Protections for Health Care Workers and Facilities During the COVID-19 Pandemic

The Massachusetts Medical Society wishes to be recorded in support of Senate bill 2630, An Act to Provide Liability Protections for Health Care Workers and Facilities During the COVID-19 Pandemic.

The Massachusetts Medical Society is a professional association of over 25,000 physicians, medical residents, and medical students across all clinical disciplines, organizations, and practice settings. The Medical Society is committed to advocating on behalf of patients, for a better health care system, and on behalf of physicians, to help them provide the best care possible. To that end, during this time of novel and emergent challenges facing our entire health care system, it is critical for Massachusetts to equip the health care workforce with the resources and protections necessary to provide optimal quality care to the patients and protect the public health of our Commonwealth. Recognizing this need, S.2630 supports our health care workforce by reducing unreasonable liability exposure, as current liability standards do not adequately contemplate the extreme circumstances under which clinical care is being provided during this pandemic.

The COVID-19 pandemic is overwhelming our health care system and severely constraining resources, including health care personnel. Steps have been taken to maximize the physician workforce to meet increased demand, but additional physicians will still be needed, and our current physician workforce will be asked to provide increasingly complex care to more patients under ever more challenging circumstances. This pandemic has created a public health emergency that is drastically changing the provision of health care services based on guidance and recommendations from federal, state, and local government directives. Although necessary, these measures have raised serious concerns about the potential liability of physicians and other health care professionals who are responding to the pandemic and who continue to provide high-quality patient care while adhering to these new guidance and recommendations. As a result, physicians face an increased threat of medical liability lawsuits due to circumstances that are beyond their control. These lawsuits may come months or even years after the current ordeal ends, when the public memory of their sacrifices may be forgotten.

The threat of unreasonable legal liability remains one significant obstacle for those considering how best to offer their services. During this unprecedented predicament, physicians are providing care under extreme circumstances that may require them to make unparalleled and challenging clinical decisions. As such, physicians are concerned that the provision of care and clinical decisions made under these extreme circumstances created by this pandemic situation may be viewed as insufficient or negligent, increasing liability exposure for both physicians providing direct COVID-19 care and those continuing to provide other medically necessary care. This public health emergency overtasks the health care system from a physical resource perspective, and the last thing we would want our physicians to concern themselves with is the threat of liability exposure. Physicians’ skills, knowledge, experience, time, and energy are being stretched to the point that intangible resources must be judged when considering the circumstances under which they are practicing. Based on the varying circumstances under which each physician is practicing during this pandemic, differing ability to respond threatens to deconstruct the concept of a “standard of practice” to which all can be held. Accordingly, any shifting standard of practice is inadequate to allay physician concerns regarding increased liability exposure. While announcing new emergency guidelines may help assist physicians make extremely difficult choices, the most helpful action would be to take the definitive step of shifting the liability standard from that of professional negligence to one of gross negligence. This negligence standard provides leeway to address unconventional needs with accessible resources while still reserving patients’ legal protections from unacceptable conduct. It is a clear standard that provides notice to all physicians and accommodates the unprecedented need for medical services at this time.

Under current medical liability standards, physicians seeking to expand their services to meet the pandemic need may be discouraged from doing so by the potential increase in liability exposure that is incongruous with the necessary provision of care and clinical decisions made under highly distressed circumstances. This bill does nothing to alter the standard of care owed to patients of the Commonwealth; instead, it heightens the degree of negligence required to prove liability relative to that standard. As a result, patients will continue to be assured of the best possible care in light of the circumstances, while healthcare professionals will be assured that their dutiful efforts to provide care in these trying times will be recognized through commensurate liability protections.

The federal government already acknowledged that liability is a significant impediment to physicians and other clinicians. The recently enacted CARES Act includes important liability protections for health care volunteers who respond to the COVID-19 crisis. Also, Congress has passed laws that provide various liability protections for physicians and other clinicians who volunteer or who provide health care services under certain, limited circumstances. There are various state liability protections available as well. Although these state and federal liability protections exist for volunteers responding to this pandemic, those liability protections do not apply to most paid physicians. At this critical time, we must empower physicians to make difficult decisions that provide the best patient care possible under the most trying circumstances while not later penalizing them unreasonably via tort provisions that were written without contemplation of such a public health emergency. It is critical that physicians’ liability apprehensions are calmed so that they can focus more completely on patient care.

New York, the epicenter of the COVID-19 pandemic in the United States, has provided similar liability protection through Executive Order, while more than a dozen other states have enacted statutes similarly limiting physician liability in a public health emergency. This legislation strikes an appropriate balance between supporting physicians and protecting patients. Accordingly, we respectfully request the legislature take immediate action to safeguard physicians as they work overtime to care for patients and protect public health.

Furthermore, the Medical Society supports inclusion of clinics amongst the health care facilities offered this liability protection, as they are pivotal locations where health care is being rendered. Similarly, physician practices should also be afforded the liability protections granted by this bill, as they represent the broader organization of individual health care professionals who are offering their services in support of the fight against COVID-19. To that end, we respectfully suggest adding the following language to incorporate clinics and physician practices as entities included in the definition of "Heath care facility" as outlined in S.2630: “xi. Clinics, as licensed under section 51 of chapter 111; or xii: Physician practices, including any entity organized under chapters 156A, 156C, 108A and 180 providing health care services through licensed or certified health care professionals.”

The Medical Society requests the legislature to take immediate action to provide this important liability protection for health care workers so that the health care workforce can provide its undivided attention to the most fundamental concern—the patients. Accordingly, the Medical Society urges the Joint Committee on Financial Services to report out favorably on S.2630, An Act to Provide Liability Protections for Health Care Workers and Facilities During the COVID-19 Pandemic.

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