Virginia medical providers want liability protections during the COVID-19 pandemic

Virginia medical providers want liability protections during the COVID-19 pandemic
Nurse (Source: pixabay)

A group of 19 Virginia medical associations sent a letter to Gov. Ralph Northam on Tuesday, requesting legal protections for their response to the COVID-19 pandemic.

The letter, signed by such major industry players as the Medical Society of Virginia and Virginia Hospital and Healthcare Association, includes a draft executive order and calls on Northam to declare “civil and criminal immunity to health care providers that act in good faith” while responding to the outbreak.

“Despite our collective good faith and exhaustive efforts and a number of environmental factors that are outside of our control, we have seen a marked increase among the legal community discussing and advertising the possibility of tort litigation for our response to the COVID-19 pandemic,” it reads.

Dr. Clifford Deal, president of the Medical Society of the Virginia, said the request was intended to clarify existing state statutes that have largely remained unlitigated. Virginia code extends certain liability protection — excluding “gross negligence or willful misconduct — to medical providers during disasters and emergencies. Another section of code extends civil liability protection to hospitals and credentialing agencies during the same circumstances.

But because the current pandemic is so unusual, there’s no legal precedent in Virginia establishing that COVID-19 — the disease caused by a new coronavirus — counts as a “disaster,” Deal said. The letter requests Northam to unequivocally declare that the state’s current protections extend to the pandemic, and to clarify that assisted living facilities, adult day centers, home care and hospice services would have the same protections as other medical providers.

“We’re talking about something that hasn’t happened in a century,” Deal said, comparing the spread of COVID-19 to the Spanish flu pandemic. “There was no medical malpractice in 1918.”

Multiple states, including New Jersey, Tennessee and Michigan, have issued similar executive orders in response to the pandemic, said Elliott Buckner, president of the Virginia Trial Lawyers Association. VTLA helped draft the potential executive order, adding an end date of June 10 — when Northam’s declared state of emergency is scheduled to expire.

As coronavirus case numbers continue to rise in Virginia and across the country, doctors and other providers are being placed in unprecedented situations. When it comes to COVID-19 care, some physicians are forced to go without personal protective equipment, or — in especially agonizing cases — make decisions on which patients receive ventilator support, said Clark Barrineau, the assistant vice president of government affairs for MSV.

The Virginia Mercury is a new, nonpartisan, nonprofit news organization covering Virginia government and policy.