May 6 2020

Critical Limits on the New Massachusetts Immunity Statute for Medical Providers

It was welcome news when Governor Baker extended civil-suit immunity to medical providers in Massachusetts by signing S. 2640 on April 17, 2020. However, it is important for health care providers, risk managers, and general counsel in the Commonwealth to recognize the limits of the statute in both time and scope.

As a threshold matter, the statute itself applies only during the current state of emergency. The emergency was declared by Baker on March 10, 2020, with an indefinite endpoint. As such, the early days of the crisis are outside of the scope of the statute – for example, claims related provider responses to the initial Biogen outbreak may not enjoy immunity.

As to the scope of the statute, there are three distinct requirements, each of which must be satisfied for a provider to become immune from “suit” and “civil liability.” An attempt should be made by counsel, where there is immunity “from suit” to attempt to dispose of any such actions with an immediate motion to dismiss. However, the language and construct of the statute and its limitations will likely render an initial dispositive motion difficult upon which to prevail.

The three preconditions which must be met are:

    1. The health care facility or health care professional is arranging for or providing health care services pursuant to a COVID-19 emergency rule and in accordance with otherwise applicable law;
    2. Arranging for or providing care or treatment of the individual was impacted by the health care facility’s or health care professional’s decisions or activities in response to treatment conditions resulting from the COVID-19 outbreak or COVID-19 emergency rules; AND
    3. The health care facility or health care professional is arranging for or providing health care services in good faith.

It is not that an action takes place during the crisis -- it is whether the crisis response required an action that may not otherwise have been appropriate. As to the first two prongs, a determination must be made as to whether or not the provider was arranging for or providing services “pursuant to a COVID-19 emergency rule” and whether or not there was a correlation between “treatment conditions related to the COVID-19 outbreak” and the alleged negligence.

The first major caveat is that a decision or an action by a healthcare professional results from “COVID-19 emergency rules” This is by statutory definition, a very limited circumstance. The crux of this requirement is that, essentially, the provider must have been providing care according to “a statement, guidance, rule-making or regulation that waives, suspends or modifies otherwise applicable state or federal law, regulations or standards….” Such rules, moreover, must relate to either:

(i) scope of practice or conditions of licensure, including modifications authorizing health care professionals licensed in another state to practice in the commonwealth; or

(ii) 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.

This limited definition seems largely targeted toward care that is provided under activated “crisis standards of care.” The Massachusetts DPH issued guidance on April 7, 2020 (and revised on April 20, 2020) as to when crisis standards of care apply and, it appears, immunity is triggered as a response governed by COVID-19 Emergency rules:

Due to the unique nature of healthcare delivery and the uneven distribution of resources across healthcare facilities, the resources at one facility may become exhausted well before another facility. If a healthcare facility becomes, or anticipates becoming, no longer able to provide the usual standard of care, the facility must contact the DPH Duty Officer available 24-7 at (617) 339-8351. The statewide incident command will either direct the triage of patients to a reasonable alternative facility or coordinate the reallocation of resources to the facility in need. Every effort will continue to be made to avoid a situation where the crisis standards need to be utilized.

Where no such “crisis standards of care” have been activated in a formal manner as of yet, it does not appear that such an element will come into play in immunizing against liability. Other potential emergency rules could include nursing staffing levels, (requirements under M.G.L. c. 111, §231 waived by DPH); credentialing and nursing and physician licensure issues, decisions related to the use and implementation of physician’s assistants.

The second caveat, while somewhat more broad, still appears to be narrowly constructed. Immunity extends when a “health care facility or health care professional is arranging for or providing health care services pursuant to a COVID-19 emergency rule” if it is the rule itself that impacts the care, or if the “impact” came from “treatment conditions resulting from the COVID-19 outbreak.” The statute is silent on how to define those “treatment conditions.” It stands to reason that the statute’s intent was to suggest that specific decisions related to patient care which related to scarcity of equipment or testing, limitations in personnel and staffing, and the like. Presumably, there must be a bright causal line from COVID-19 to this limitation.

However, at least in theory, a significant set of potential claims are left out of the immunity provisions that arise from “treatment conditions resulting from the COVID-19 outbreak.” Imagine a failure to diagnose COVID-19 based upon clinical presentation in the absence of positive testing (i.e. “presumptive positives”). The “treatment conditions” would not have limited a presumptive diagnosis in the absence of sufficient testing. One can imagine a claim where an alleged negligent failure to presumptively diagnose led to transmission to a family member.

What about a surgery that was delayed given the crisis, that a claimant alleges have been more emergent than it was determined by a surgeon? Where the surgery could have been performed if it was properly determined to be emergent, it is unlikely such a decision will be immunized against. The argument will turn on whether or not such a misdiagnosis resulted from “treatment conditions resulting from the COVID-19 outbreak” – at least at first blush, it does not appear to satisfy that condition. That a decision was made in the context of COVID-19 is not enough.

At least one prominent Plaintiff’s attorney in Massachusetts has suggested that providers must obtain patients’ “full written consent” prior to delaying any surgeries during the COVID pandemic. This has little connection to current law regarding informed consent which, at its crux, requires patients be informed about the risks and benefits associated with a proposed treatment option. It is entirely consistent, however, with the continued efforts of the Plaintiff’s bar to expand the scope of the informed consent process into a new and unrecognizable form. Defense counsel can expect the introduction of such claims, which would likely survive an immunity challenge.

The statute also requires that the provision of health care is done in good faith. The definition is geared toward the potentially catastrophic triage decisions providers may be required to employ in an overwhelmed medical system. It further focuses on determinations made by the Department of Public Health in the prioritization of care:

“Good faith”, shall, without limitation, include acts or omissions undertaken consistent with the guidelines for crisis standards of care for the COVID-19 pandemic issued by the department of public health, and exclude, without limitation, acts or omissions based on race, ethnicity, national origin, religion, disability, sexual orientation or gender identity, and deceptive acts or practices, and fraud.

Again, this “good faith” standard appears to depend on the triggering of crisis standards of care. If not done so according to guidelines, whether an action was done in “good faith” under the limited definition in this statute is questionable. Each element of that statute is designed to protect against existential decisions by health care providers. There is still significant room, it appears, for claims to be brought in Massachusetts related to many aspects of care during the COVID-19 crisis, with no immunity provided.

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