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COVID-19 and Medical Malpractice

Jeffrey R. Davis

Last week Governor Andrew Cuomo of New York issued an executive order which granted immunity from lawsuits to medical healthcare providers for injury or death. The March 23, 2020 order provided, among many things: “to the extent necessary to provide that all physicians, physician assistants, specialists assistant, nurse practitioners, licensed registered professional nurses and licensed practical nurses shall be immune from civil liability for any injury or death alleged to have been sustained directly as a result or an act or omission by such medical professional in the course of providing medical services in support of the state’s response to the COVID-19 outbreak, unless it is established that such injury or death was caused by the gross negligence of such medical professional”.

Certainly, these are unprecedented times that call for unprecedented measures. Florida already has strict regulations that provide for such immunity and protections to healthcare providers and no new laws, executive orders or amendments are required to protect healthcare providers rendering services for COVID-19 related care.

First, Florida has a Good Samarian Act which provides immunity from civil liability (F.S. 768.13) This law states that, “ Any person, including those licensed to practice medicine, who gratuitously and in good faith renders emergency care or treatment either in direct response to emergency situations related to and arising out of a public health emergency or at the scene of an emergency outside of a hospital, doctor’s office, or other place having proper medical equipment, without objection of the injured victim or victims thereof, shall not be held liable for any civil damages as a result of such care or treatment or as a result of any act or failure to act in providing or arranging further medical treatment where the person acts as an ordinary reasonably prudent person would have acted under the same or similar circumstances”.

Under that same law, “any health care provider, including a hospital providing emergency services shall not be held liable for any civil damages as a result of such medical care or treatment unless such damages result from providing, or failing to provide, medical care or treatment under circumstances demonstrating a reckless disregard for the consequences so as to affect the life or health of another”. Florida’s Good Samaritan Act is designed to protect Florida’s healthcare providers from any civil liability (meaning the risk of lawsuits) for emergency care. No such additional rules or protections are needed and, in this writer’s opinion, should not be created since there are even further protections under the Florida Medical Malpractice statute. The legislature’s intent in creating this law was crystal clear and is plainly stated in the statute; “it is to encourage healthcare practitioners to provide necessary emergency care to all persons without fear of litigation”. The Act further expands to help a provider that undertakes medical care for FEMA or any local emergency response team.

Florida’s Medical Malpractice statute provides an additional layer of protection to healthcare providers rendering care in the era of the Coronavirus crisis. Medical Malpractice in Florida is governed by Chapter 766 of the Florida Statutes. The law that is already on the books provides specific protection to healthcare providers based on the very definition of what a person bringing a medical malpractice lawsuit must prove.

“The claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.”

The words, “in light of all relevant surrounding circumstances” clearly allowsCOVID-19 related care to be considered an extraordinarily unusual and emergency crisis which would not be considered ordinary medical care.

In plain and simple words, no lawyer is going to sue a healthcare provider that was trying to save someone’s life during a COVID-19 outbreak. No jury is going to side with a claimant suing a healthcare provider for trying to save the life of a person suffering the effects of the Coronavirus. It is not realistic to even contemplate such a case.

As Floridians we need to be vigilant in protecting our rights. We cannot allow a crisis or emergency to be used as apretext to create redundant, unnecessary and confusing new regulations that really don’t change what is already established state law. Many conservative legislators are trying to get the Governor to put blanket statements of immunity in our existing healthcare laws. They are not needed. Doctors and healthcare providers are already protected. During these unparalleled and frightening times, the last thing we should do is over-react and give up our rights. Healthcare providers, first responders and all those rendering aid as good Samaritans have existing legal protections and immunity from civil lawsuits stemming from the care they render to patients suffering the effects of COVID-19. Education, awareness and common sense are essential tools during these unparallel days.

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