COVID-19 and Liability Limitations for the Health Care Sector

COVID-19 and Liability Limitations for the Health Care Sector

Legal Sidebari
COVID-19 and Liability Limitations for the
Health Care Sector
July 1, 2020
The ongoing Coronavirus Disease 2019 (COVID-19) pandemic has required health care professionals and
facilities to care for a surge of patients with COVID-19 symptoms. This is occurring in a health care
environment where the treatment guidelines specific to COVID-19 are stil evolving and where some
health care facilities are experiencing various resource shortages related to their pandemic response,
including shortages in staffing as wel as certain protective and treatment equipment. For some health care
facilities, these shortages have also caused the delay or cancelation of non-COVID-19 treatments or
procedures. Various commentators and policymakers have recognized that these conditions may generate
certain liability risks for the health care sector, including risks resulting from unsuccessful COVID-19
treatments, potential COVID-19 transmission, and canceled or delayed non-COVID-19 treatments. These
risks have prompted a debate over whether the government should grant certain liability limitations to the
health care sector, and if so, what the appropriate scope of those limitations should be. Since the onset of
the pandemic, several states have already provided varying degrees of liability protection to their health
care sector. While some stakeholders believe that robust federal liability protections may be necessary to
encourage the provision of health care services and ensure the economic viability of health care facilities,
others believe that such protections would reduce accountability and harm the individuals receiving care.
To facilitate Congress’s review of this issue, this Sidebar provides an overview of the existing federal and
state limitations on liability for the health care sector that are relevant to the current pandemic before
identifying several legal considerations for Congress.
Background
In general, individuals can file a state-law tort suit against their treating health care professionals and
facilities if the professionals’ or facilities’ negligent or wrongful conduct results in injury. In the context
of COVID-19, several early lawsuits have asserted, for instance, medical malpractice claims against
individual care providers for al egedly failing to diagnose and treat the condition timely and properly. As
to health care facilities, plaintiffs have asserted, for instance, corporate negligence and wrongful death
claims based on the facilities’ al eged failure to implement procedures properly to prevent plaintiffs’
exposure to COVID-19, to provide staff with adequate protective equipment, or to provide proper
treatment. Several federal and state laws may limit the scope of this liability in the context of the
pandemic, which the federal government and al fifty states have declared an emergency.
Congressional Research Service
https://crsreports.congress.gov
LSB10508
CRS Legal Sidebar
Prepared for Members and
Committees of Congress

Congressional Research Service
2
Existing Liability Limitations Under Federal Law
Federal law currently limits individual health care professionals’ tort liability in three circumstances.
First, the Secretary of Health and Human Services’ (HHSs’) declaration of a public health emergency
triggers immunity limitations under the Public Readiness and Emergency Preparedness Act (PREP Act).
With exceptions discussed below, the PREP Act immunizes, among others, health care professionals from
liability (under state and federal law) relating to the administration or use of any medical product that
constitutes a “covered countermeasure” under that law. In the case of COVID-19, the Secretary declared a
public health emergency on January 31, 2020. Relevant “covered countermeasures” for the current
pandemic that may receive PREP Act immunity include, for instance, a drug or device developed to
diagnose or treat COVID-19. (For more detailed analysis of the PREP Act, see this CRS product.)
Second, with exceptions discussed below, Section 3215 of the Coronavirus Aid, Relief, and Economic
Security Act (CARES Act) immunizes volunteer health care professionals from liability (under state and
federal law) for their acts or omissions when performing health care services during the period of the
declared COVID-19 emergency, if the professionals perform those services (1) within the scope of their
state license and (2) under the good faith belief that the treated individual needs health care services.
Third, the federal Volunteer Protection Act of 1997 (VPA) immunizes volunteers—including volunteer
health care professionals—of a nonprofit or governmental entity from liability for certain acts or omission
on behalf of the entity. Unlike the PREP Act and Section 3215 of the CARES Act, the VPA’s liability
limitations do not depend on an emergency declaration. Instead, this subset of volunteer health care
professionals are immune from liability for acts or omissions on behalf of their entity as long as they were
acting within the scope of their responsibilities at the entity; were properly licensed to engage in the
conduct at issue (if a license is required); and their operation of a vehicle, vessel, or aircraft did not cause
the harm. This group of volunteer health care professionals may thus be additional y immune from tort
claims related to non-health care services they provide, if such services are within the scope of their
responsibilities with their nonprofit or governmental entity.
Each of these liability limitations has, at minimum, a “wil ful misconduct” exception that general y
excludes from immunity conduct performed in knowing disregard of the safety of others. In the case of
the PREP Act, the exception applies only if the wil ful misconduct causes death or serious physical injury.
In contrast, both the CARES Act and VPA more broadly exclude from immunity any injury caused by
“wil ful or criminal misconduct, gross negligence, reckless misconduct, or a conscious flagrant
indifference to the rights or safety of the individual harmed.” Because the VPA applies to a broader range
of volunteer activities, the law further excludes from immunity any misconduct that constitutes crimes of
violence, acts of international terrorism, hate crimes, sexual offenses, or violations of federal or state civil
rights law. In addition to these exceptions, VPA’s liability limitations for volunteers is subject to another
caveat: the immunity does not apply to the volunteers’ nonprofit or governmental entities, which may be
sued and held vicariously liable for the negligent conduct of their volunteers. The VPA expressly reserves
the entities’ right to then bring a civil action against the volunteer. The VPA limits, in any action against a
volunteer, the volunteer’s potential liability for noneconomic damages (i.e., damages related to
nonpecuniary losses, such as pain and suffering) and punitive damages (i.e., damages beyond the amount
needed to compensate the plaintiff and intended to punish the defendant).
Existing Liability Limitations Under State Law
Beyond federal liability limitations, state law may further limit their health care sector’s liability exposure
during an emergency. Even before the onset of the COVID-19 pandemic, the laws of some states—
including Indiana, Louisiana, Maryland, and Virginia—automatical y conferred certain immunity to their
health care professionals and/or facilities upon a gubernatorial emergency declaration. Other states—over
twenty according to one analysis—have granted immunity in specific response to COVID-19.

Congressional Research Service
3
In general, these liability protections, at minimum, insulate individual health care professionals—
including non-volunteers—from liability related to COVID-19 care provided during the emergency
period, including care that may not constitute a “covered countermeasure” under the PREP Act. Like the
federal immunity provisions under the CARES Act and VPA, states general y do not extend tort immunity
to acts of wil ful or criminal misconduct, gross negligence, and reckless misconduct. Beyond this
baseline, state laws vary in scope:
 Potential immunity holders. Several states appear to limit immunity protections only to
individual health care professionals. On the other hand, other states have also extended
liability protections to health care facilities and entities, such as hospitals (and other
facilities that provide acute care) and long-term care facilities, including nursing homes
and assisted living facilities.
 Conduct subject to immunity. The immunity protections several states have granted
appear to extend only to acts or omissions related specifical y to COVID-19 care. Other
states also immunize from liability activities related to non-COVID-19 care if that care
was affected by the potential immunity holder’s pandemic response.
 Standard governing the application of immunity. To receive immunity protection,
many but not al states require those who may be entitled to immunity to have acted in
“good faith” in providing care. Most states that have imposed this “good faith” standard
do not define it. One court that has considered the standard in the health care
decisionmaking context held that good faith entails a defendant’s “honest belief in the
suitability of the actions taken” and the performance of those actions “honestly, with
proper motive, even if negligently.” At least one state with a “good faith” standard also
imposed different evidentiary standards depending on who may be entitled to immunity:
individual health care professionals—but not health care facilities—are presumed to have
acted in good faith. Such a presumption makes it easier for a defendant to assert
immunity by placing the burden on a plaintiff to disprove the existence of good faith.
Without that presumption, a defendant invoking the immunity provision would typical y
bear the burden of proving good faith.
 Exceptions to immunity. In addition to the exceptions noted above for wil ful or
criminal misconduct, gross negligence, and reckless misconduct, some states exclude
certain additional conduct or circumstances from liability protection. Massachusetts, for
instance, also excludes from liability protection conduct with an intent “to discriminate
based on race, ethnicity, national origin, religion, disability, sexual orientation or gender
identity.” Moreover, Massachusetts excludes the immunity protection from applying in
consumer protection actions brought by the state attorney general and in false claims
actions brought by or on behalf of the commonwealth.
Considerations for Congress
As the above discussion il ustrates, states that have chosen to expand liability limitations for their health
care sector during the COVID-19 pandemic have taken different approaches to calibrating the scope of
immunity. These approaches reflect an effort to balance several interests and concerns. A grant of
immunity to particular persons or entities can incentivize certain social y desirable (and often high-risk)
activities by reducing exposure to potential lawsuits related to those activities. In the context of the
COVID-19 pandemic, the granted immunity is general y intended to encourage provision of health care
services during a health emergency characterized by many uncertainties, including evolving treatment
protocols, potential transmission risks, and resource shortages. At the same time, however, these liability
protections can be viewed as harming accountability by removing a key legal deterrent—suits by injured
parties—to careless or wrongful conduct. To balance these competing concerns—which can entail a

Congressional Research Service
4
different set of calculations for different groups—states have general y imposed various conditions and
exceptions to the liability limitations provided to their health care sector.
Expansion of existing federal liability limitations related to COVID-19 for the health care sector may
raise several legal considerations. First, one threshold issue is how to define the immunity’s scope.
Congress may, for instance, consider whether or how much to expand the class of immunity holders
(which, under federal law, currently consists primarily of volunteer health care professionals), whether to
extend liability protection only to claims related to COVID-19 care, and what standards and exceptions
should apply to the grant of immunity (and whether those standards and exceptions should differ for
various groups of immunity holders). Congress may also consider whether and to what extent to extend
liability protections beyond state-law claims. While state-tort law comprises a primary source of liability
for the health care sector in this context, some potential immunity holders may also be exposed to claims
related to COVID-19 care under certain federal laws, such as the Americans with Disabilities Act.
Second, as an alternative or in addition to expressly immunizing certain conduct from civil liability,
Congress may also contemplate other ways of mitigating such liability. To the extent Congress permits
any civil suit against particular persons or entities, Congress could—similar to the approach taken under
the VPA—limit the types and/or amounts of damages that plaintiffs can recover. Congress could also
streamline the procedures governing how the lawsuit would be conducted, including imposing certain
limits on the scope and timing of discovery, shortening the applicable statute of limitations, creating a fee-
shifting provision, or requiring an alternative dispute resolution process. To the extent any existing state
law governs these procedures or requirements, those state tort rules could be displaced in accordance with
preemption principles discussed below if they conflict with a federal requirement.
Final y, Congress may consider how any federal liability limitations would interact with existing state
immunity protections. Whenever Congress legislates in an area in which it shares regulatory
responsibilities with the states, the doctrine of preemption is implicated. Under the doctrine, which is
grounded in the Supremacy Clause of the Constitution, “any state law . . . however clearly within a State’s
acknowledged power, which interferes with or is contrary to federal law, must yield.” Federal law can
preempt state law either expressly (i.e., through a statutory clause that explicitly specifies the categories of
state law that are displaced) or impliedly (i.e., when Congress’s command is implicitly contained in the
relevant federal law’s text, structure, and purpose). The scope of preemption may implicate different
values and policy preferences (e.g., the benefits of uniform national regulation versus policy
experimentation at the state level). To the extent Congress decides to provide certain liability limitations
for the health care sector in the COVID-19 context—an action many states have taken through different
approaches—Congress may consider whether to include an express preemption clause that clarifies the
intended scope of preemption. The VPA, for instances, specifies that it preempts any inconsistent state
law but preempts no state law that provides additional liability protections to volunteers of a nonprofit or
governmental entity. The VPA, however, also al ows states to opt out of the law by following certain
specified procedures. For states that do not opt out, the VPA further saves from preemption several state
requirements or conditions that are not “inconsistent” with the VPA.

Author Information

Wen S. Shen

Legislative Attorney

Congressional Research Service
5

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United
States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However,
as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the
permission of the copyright holder if you wish to copy or otherwise use copyrighted material.

LSB10508 · VERSION 1 · NEW