Risks of Dusting Off the Scrubs

March 18, 2020

Author: Lori Rosen Semlies

As the country ramps up to contain the rapid spread of COVID-19, the governors of New York and Colorado have called on former health care workers to support health systems stressed by the coronavirus. 

Doctors and nurses, for example, who currently work in another field or are retired with an active medical license, or one that can be reactivated, are encouraged to “dust off their scrubs.” Both governors recognize that many of the health care providers treating patients with the coronavirus have been forced to self-quarantine for at least two weeks after coming in contact with a confirmed coronavirus case, thus creating a shortage of doctors and nurses available to treat patients for any medical need.

Governor Cuomo of New York suggested, but has not yet ordered, that former doctors and nurses "reconnect" with their past employers so that an "on call" reserve can be available.

Professional Liability Concerns
Such a request, which could soon become an official declaration, raises professional liability questions, such as does state or federal immunity law shield these volunteers from liability? Or would the malpractice insurance of hospitals or nursing homes extend coverage to include these volunteer nurses and doctors? 

In recent days, the Secretary of the Department of Health and Human Services made a declaration pursuant to the Public Readiness and Emergency Preparedness Act (PREP Act) that provides immunity from liability (except for willful misconduct) for claims of loss caused by, arising out of, relating to or resulting from administration or use of countermeasures to diseases, threats and conditions determined by the Secretary to constitute a present or credible future risk of a public health emergency to entities and individuals involved in the development, manufacture, testing, distribution, administration and use of such countermeasures. A PREP Act declaration is specifically for the purpose of providing immunity from liability and is different from, and not dependent on, other emergency declarations.

A Notice of Declaration under the Public Readiness and Emergency Preparedness Act for medical countermeasures against COVID-19 was submitted to the Federal Register and was effective February 4, 2020.

What is the scope of this federal immunity protection? What exactly are countermeasures? Would this extend to a former nurse or physician resuming the practice of medicine in a hospital, office or clinic setting? Does it extend to treatment of individuals who are not being tested or treated for COVID-19?

The same questions could be raised with respect to states’ Good Samaritan laws. Such immunity applies if the Good Samaritan makes an error while rendering emergency medical care. However, two conditions usually must be met: (1) the aid must be given at the scene of the emergency and (2) if the "volunteer" has other motives, such as the hope of being paid a fee or reward, then the law will not apply.

Does the crisis resulting from COVID-19 qualify as an emergency? One could argue that an emergency is not an acute unexpected set of circumstances where the provider is forced into quick action. This may not extend to a nurse appearing at the door of a hospital to provide medical services under the current set of circumstances. Furthermore, to avail themselves of the Good Samaritan law protection, returning nurses could not expect to be paid for their services.

Regardless of whether they are going to be compensated, who is going to afford the nurse or doctor a defense and pay the costs of the defense? Will the hospital’s liability insurance extend coverage or vitiate an exclusion in its policy? 

Perhaps in order to encourage participation, executive or legislative action needs to be taken to specify the type of protection these health care “returnees” and their vicariously liable employers can expect during this crisis.

In times such as these, we as members of a community must work together to contain the spread of the virus and protect each other without the fear of liability for any health care worker who returns to a hospital to help. This mandate poses an interesting question for the underwriters, as communities balance the twin priorities of containment and preparedness.

View more Insights