Physicians’ groups and others are urging Florida Gov. Ron DeSantis to expand liability protections for health care professionals working on the front lines of the coronavirus crisis.
A March 26 letter authored by the presidents of the Florida Medical Association (FMA), the Florida Osteopathic Medical Association and the Florida Justice Reform Institute warns the governor about potential liabilities physicians and others will face during their work to treat those infected by the Covid-19 virus.
The letter by Ronald Giffler, Eric Goldsmith and William Large comes in the wake of DeSantis’ March 20 executive order suspending non-essential elective medical procedures in Florida until the current medical emergency has passed.
“As a result of your directives in Executive Order No. 20-72, health care providers are required to make new and difficult decisions on which patients to see and treat immediately, and which patients can wait for care until the executive order is lifted,” the letter states. “... It is not difficult to imagine the potential liability that health care providers will likely face based on the decisions they are forced to make during this crisis.”
The letter suggests three different strategies the governor could take to shield medical professionals from excessive litigation during the pandemic. Among them is suspending some provisions of the state’s Good Samaritan Act so that licensed professions rendering emergency care would not face civil damages for doing so. The health care provider also couldn’t be sued over a failure to provide additional medical treatments under this strategy.
Another way to provide the legal protections would be a blanket liability by issuing an executive order granting health professionals immunity from civil liability for care provided under Executive Order 20-72, the letter says. Alternatively, sovereign immunity could be extended to health care workers by deeming them agents of the Department of Health when they work to comply with the March 20 executive order.
Jeff Scott, the general counsel for the Florida Medical Association, said the letter was geared toward helping physicians deal with the ramifications of the governor’s order on non-essential medical procedures.
“You’ll have physicians having to make decisions to postpone certain procedures or do certain procedures,” Scott told the Florida Record. “And with that decision comes potential liability.”
Many of the medical professionals are already seeing decreased revenues, the possibility of closing their private practices and having to cope with an inadequate supply of protective equipment, he said. They don’t need the additional burden of litigation worries, according to Scott.
“There’s a whole slew of things that creative plaintiffs’ attorneys can find ways to sue for,” he said.
The Medical Professional Liability Association is also supporting the effort to get the governor to address the liability issue. A good-faith decision by a doctor to delay a surgery could eventually lead to a bad outcome for a patient – and potentially the filing of a lawsuit, according to Mike Stinson, the association’s vice president of government relations and public policy.
“Clearly, that’s putting the physician at risk, especially in these times when we’re doing everything possible to limit contact between people,” Stinson told the Record. “... That’s going to be a really tough call for a lot of doctors to make, and they’re going to rely on the idea that the government recommended that they make that delay.”
New York Gov. Andrew Cuomo took a similar action by waiving provisions of that state’s Good Samaritan statute to extend liability protections to health care workers, he said.
“We very strongly believe that this is the next logical step to take,” Stinson said.
But the path to providing liability protections to doctors and others in the health care field may not be quite as simple as drafting another executive order. State lawmakers would need to be involved as well, according to attorney Stephen H. Siegel of the Lubell Rosen Law Firm.
“I believe giving health care professionals protection from civil liability or suspending the Good Samaritan Act will require the Florida legislature to take action first,” Siegel told the Record. “As there are good reasons for the positions taken by both the proponents of these proposals and their opponents, I do not anticipate the Florida legislature will take up the proposal before its regular 2021 session.”
The FMA issued some guidance for its members about the governor’s order after consulting with staff from the state Department of Health. Doctors can keep seeing patients for evaluations and management of conditions, according to the FMA, and they can continue with telemedicine visits.
“Primary care practitioners can continue to see and treat patients with chronic and acute conditions, perform wellness exams and provide mental health services that do not consume personal protective equipment,” the FMA said.