Virtual Conversation | Recapping the 2021 Session: Legislative Republicans, May 18, 2021 Register

A bill on COVID liability protections for health care providers makes it through to Senate Rules

Senate Bill 5271 passed through the Senate Law and Justice committee and on to Senate Rules Thursday. This bill would provide liability protections to providers and facilities by amending the necessary elements of proof of injury during the COVID-19 pandemic.

This bill provides a method for determining the standard of care during the state of emergency in response to the COVID-19 pandemic. The current standard of care, as established under law, is the level and types of care of a reasonably sensible practitioner possessing the degree of skill, care and learning possessed by other members of the same profession. The sponsor of the bill, Sen. Keith Wagoner, said:

What it really does is it provides them [providers and facilities] limited liability in the execution of their duties so that they aren’t held liable for changes in our understanding of the disease, of COVID, and things that they did that were best practices at the beginning of the pandemic, that have changed since then. It really is going to allow them to do their job in an efficient and effective manner without risk of liability for things that they really have no control over.”

Due to the COVID-19 pandemic, states have been enacting liability protections for physicians because of changes in the provision of care. Throughout the pandemic there have been restrictions on non-urgent medical procedures, personal protective use and other services to help stop the spread of the virus and free up hospital beds. Taya Briley, executive vice president of the Washington State Hospital Association, said:

 There were very few clinical protocols for COVID treatment that existed at that time [the start of the pandemic]. And what was in place did not align, and they changed from day to day. What was clinical best practice on March 22nd in Othello, was going to be different on April 22nd in Seattle. And those treatment protocols have continued to change throughout the response. And there were a lot of questions. If a protocol wasn’t followed and a patient died or had adverse outcomes, what was the liability exposure to that provider personally? If patients were typically cared for in an ICU and it was overwhelmed and they needed to be cared for in an acute care bed, what was the liability for that? What if we ran out of ventilators? What if we ran out of staff?

Then the governor issued a proclamation prohibiting non-urgent procedures and unless a treatment that was withheld would lead to patient harm in the next three months, the treatment could not be provided. So many questions there, what constituted patient harm? Clinicians had never had their hands tied in this way before. And they didn’t have the clinical training to be able to make that determination. If a cancer diagnosis was delayed because of diagnostic tests that can’t be done, what was the liability for that? If opioid dependence increased because of a delayed joint surgery, who was responsible for that? We couldn’t answer those questions.”

The bill establishes that there must be proof that a health care provider failed to exercise the degree of care, skill and learning expected of a practitioner in the same profession in the same time frame. Due to this failure to exercise the standard of care an injury had occurred. 

When the court is determining if a health care provider failed to follow the accepted standard of care, they must consider if the provider was acting in good faith based on guidance from federal, state or local officials in response to the pandemic and those guidelines are applicable to the provider. They must also consider if the injury was due to a lack of resources directly attributable to the COVID-19 pandemic.

These necessary elements for determining proof during the pandemic only apply if they are relevant to the determination of whether the health care provider followed the standard of care. This bill was substituted by the Law and Justice committee, and the change made was the declaration of an emergency and takes effect immediately.

The bill passed its executive session unanimously, and is currently in the Senate Rules Committee.

This story was cross-posted on our sister site State of Reform.


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