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  • Elizabeth Cushing, JD


Welcome to a special edition of Safety Net. As the COVID-19 crisis continues for hospitals and providers, the State of Massachusetts passed a new law with some protections from liability. As clinicians come out of retirement or enter new facilities, providing care for lots of new patients with unfamiliar teams and systems, will people blame them when things go wrong? To help us answer that and to outline what the new law does is Attorney Beth Cushing, Senior Vice President of Claims for the Harvard Malpractice Insurance Program, CRICO.

Q.) Beth, thank you for joining us.

A.) Tom, thanks for asking me and glad to be here.

Q.) I’m sure that everybody is thinking about liability risks during this COVID crisis, at least in the back of their minds. What have you heard from our insureds and how did CRICO get involved in providing some protections?

A.) So at the beginning of the COVID-19 emergency, there was widespread concern, understandably, among our members and insureds about operating the situation where there was no “standard of care” if you will, a measure by which one would normally assess performance. In addition, there was the urgent need to increase staffing to care for the many more expected acutely ill patients and to redeploy existing staff to ensure proper coverage for all the critical services. The emergency really placed all facilities and practitioners in very unfamiliar circumstances. And needless to say, the added stress of trying to provide proper care while not becoming or making others ill is overwhelming, particularly with the issues around limited PPE. So the idea that any facility or caregiver could be held liable for any unfortunate outcome during this crisis was frankly totally unacceptable.

So we, therefore, immediately reached out to our Board, our colleagues and the member institutions and the Professional Liability Foundation of the Mass. Medical Society to assist in drafting legislation to limit the liability for claims and suits arising out of care being provided during this critical time. At the same time, the DPH, the Department of Public Health, issued crisis standards of care that were and are intended to provide guidance as to the ethical and beneficial allocations scarce resources during this pandemic and also importantly to ensure public trust in the fairness of the system for all the citizens of Massachusetts. The standards that were set forth in that document, Tom, which you can link to on our website, are incorporated into this new law, and I must say that we were very, very pleased with how swiftly the draft legislation was prepared, passed by the legislature, and signed into law by the Governor on April 19.

Q.) And so having these standards from the Mass. Medical Society wasn’t enough. I guess people obviously saw that we needed more.

A.) Well, the crisis standards of care that were issued by the Department of Public Health relate more to helping the facilities, the health care facilities, and health care workers, understand the beneficial ways to manage scarce resources in this time and would be acceptable practice in the collective judgment of many, many wise people in our community who sat down to think about this. They did not speak to liability and that’s where we needed sort of a concomitant piece of legislation to work with this crisis standard of care.

Q.) So what does the new law actually say and do?

A.) Well, it’s a very, very important piece of legislation that ultimately, I think, achieved the Governor’s goal of not allowing fear of liability to prevent health care workers from delivering the kind of medical response that we all need during this pandemic. Essentially the emergency law (which, by the way, is in effect from March 10, 2020 through the end of the emergency as declared by the Governor) creates an immunity from suit and civil liability for damages arising out of provision of health care services during the COVID-19 emergency. So long as—of course there’s always provisos, and that’s appropriate—the care was provided pursuant to and in accordance with the crisis standards of care that we just referenced and other emergency rules, and the care of the patient was impacted by the treatment conditions created by the crisis. And as I think of it, there are very few conditions right now that have not been impacted by the crisis, and I think we can all reflect on that in our own lives and recognize that to be true. So finally, the law requires that the services were provided in good faith. What does good faith mean? Well it’s defined, actually, under this statute as acting in accordance with the crisis standards of care issued by the DPH and other emergency rules. But also, critically, conduct that is intended to harm or to discriminate on the basis of race, ethnicity, national origin, religion, disability, sexual orientation or gender identity is specifically excluded. The immunity also does not apply to acts or omissions constituting gross negligence—think total disregard for the safety of a patient, recklessness, or to actions taken by the attorney general for the benefit of everyone in Massachusetts.

Q.) So it doesn’t protect everybody from everything. That’s what it says; what does it actually mean?

A.) Honestly, Tom, I don’t want anyone worried about liability ever, frankly. But I certainly understand the concerns right now—particularly, as I said when providers are operating outside the norm—is very high. I do believe that this legislation provides very important protection and CRICO will seek the full benefit of these protections on behalf of our insureds from whatever may come. Meanwhile, I think it is equally important to reflect on the emotional stress our insureds are experiencing at this time for reasons that go far beyond liability issues. Virtually everything in their world has changed, possibly forever. That’s for all of us too, and we need to support these doctors and practitioners as best we can. The passage of this law was one very big step in that direction, but it’s not the only one we can take. There’s much to think about here as a community, and I would encourage everybody to think very broadly about how we re-imagine our world.

Well thank you. Beth Cushing is an attorney and the Senior Vice President for Claims at CRICO in the Harvard system. I’m Tom Augello.

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