On April 17, 2020, Governor Baker signed into law the “Bill to Provide Liability Protections for Health Care Workers and Facilities during the COVID-19 Pandemic.” Under the new law, certain health care professionals and health care facilities may be immune from liability related to certain health care services that they provide. A copy of the bill can be found here. Liability protections apply retroactively from March 10, 2020 until Massachusetts’ COVID-19 state of emergency is terminated or rescinded.
Health care facilities and health care professionals are immune from suit and civil liability from damages alleged to have been sustained by an act or omission by the health care professional or health care facility in the course of providing health care services during the COVID-19 emergency provided that:
- The facility or professional is arranging for or providing health care services pursuant to a COVID-19 emergency rule and in accordance with otherwise applicable law.
- Arranging for or providing care or treatment of the individual was impacted by the facility’s or professional’s decisions or activities in response to or as a result of the COVID-19 outbreak or COVID-19 emergency rules; and
- The facility or professional is arranging for or providing health care services in good faith.
Immunity does not apply to conduct that is found to constitute gross negligence, recklessness, intentional harm, or discrimination. Immunity also does not apply to G.L. c. 93A claims (consumer protection) brought by the Attorney General or false claims act brought on behalf of the Commonwealth.
Because the law does not provide blanket immunity, health care facilities and professionals must be aware of the Bill’s definitions of the following terms:
- COVID-19 Emergency Rule: “executive order, order of the commissioner of public health, declaration, directive or other state or federal authorization, policy, statement, guidance, rule-making or regulation that waives, suspends, or otherwise modifies otherwise applicable state or federal law, regulations or standards regarding either 1) scope of practice or conditions of licensure, including modifications authorizing health care professionals licensed in another state to practice in the commonwealth or 2) the delivery of care, including those regarding the standard of care, the site at which care is delivered or the equipment used to deliver care, during the COVID-19 emergency.”
- Damages: “injury or loss of property or personal injury or death, including economic and non-economic damages.” As such, the new law will likely provide immunity with respect to claims of wrongful death and pain and suffering, as well as traditional economic damages and losses.
- Health Care Facilities include, but are not limited to hospitals, rest homes, home health agencies, community health centers, skilled nursing facilities, and assisted living facilities.
- Health Care Professionals include, but are not limited to, physicians, physician assistants, pharmacists, psychologists, licensed nurses and nursing aides, home health aides, nursing home administrators, and social workers. The law applies to full-time and part-time employees, agents, contractors, and volunteers, as well as health care administrators, executives, supervisors, board members, trustees and other persons responsible for supervising or managing a health care facility or its personnel.
- Health Care Services: “services provided by a health care facility or health care professional, regardless of location, that involve the i) treatment, diagnosis, prevention or mitigation of COVID-19; ii) assessment or care of an individual with a confirmed or suspected case of COVID-19; or iii) care of any other individual who presents at a health care facility or to a health care professional during the period of the COVID-19 emergency.” As such, and if the professional / facility satisfies the law’s conditions for immunity, liability protection may apply to treatment of patients and residents regardless of whether a particular patient or resident is inflicted with COVID-19.
We anticipate that the Governor or the Department of Public Health will publish additional guidance concerning the implementation of this law, and we will continue to monitor these developments.
For more information
If you have questions or concerns about compliance with guidelines for health care professionals or facilities related to COVID-19, please contact Sheri L. Pizzi or Greg Vanden-Eykel by email, or by calling 617-654-8200.
Barton Gilman has established a highly-regarded reputation for successfully defending nursing homes and long-term facilities against claims of wrongful death, abuse, neglect, or mistreatment. Our attorneys are thoroughly versed on the complex web of state and federal rules, regulations and pending legislation that impact our clients in this highly regulated industry. For more information, please click here.