Protection for Physicians Against Liability for COVID-19 Transmission

A number of statutes provide physicians with protection from liability when responding directly to the COVID-19 pandemic. For example, the Coronavirus Aid, Relief and Economic Security Act ("CARES Act") contains good Samaritan language providing liability protection for physicians and other health care professionals who provide volunteer medical services related to COVID-19 during the public health emergency. The Public Readiness and Emergency Preparedness Act creates immunity for health care professionals who administer or use counter measures such as antiviral medications, other drugs, biologics, vaccines, or diagnostics to treat, diagnose, cure, prevent, or mitigate COVID-19. The Volunteer Protection Act of 1997 provides liability protection for volunteer physicians performing services for nonprofit organizations or government entities. At the state level, Alabama Code § 31-9-16 provides liability protection for individuals, including health care workers, who are performing state functions during a state of emergency that has been declared by the Governor. These liability protections are limited to simple negligence and will not apply in cases of willful misconduct, gross negligence, or bad faith. Additionally, the protections are focused on health care workers who are directly responding to the pandemic.

So, what can physicians do to protect themselves from COVID-19 related liability in the normal course of practice? The first thing to determine is whether such liability even exists. As of this writing, the appellate courts of Alabama have not yet addressed any COVID-19 related liability claims against physicians, so we have to look for analogues in other cases. In doing so, we see that courts have imposed liability for the negligent transmission of other communicable diseases. In Berner v. Caldwell, the Alabama Supreme Court recognized "an actionable tort claim under the laws of the state of Alabama based on the transmission of genital herpes."[1] The court stated "for over a century, liability has been imposed on individuals who have transmitted communicable diseases that have harmed others."[2] Although Berner involved a claim for transmission of genital herpes, the court cited several cases in which liability was imposed for the transmission of other venereal diseases.[3] Further, the court stated that traditional tort principles apply to cases dealing with liability for the transmission of genital herpes and cited Alabama public policy, which seeks to protect its citizens from infection by communicable diseases.[4]

The court's language in Berner strongly suggests that traditional tort principles would apply to the negligent transmission of other communicable diseases, such as COVID-19. So what is a physician's duty to prevent the transmission of COVID 19 among patients? With respect to genital herpes, the Berner court held that "one who knows, or should know, that he or she is infected with genital herpes is under a duty to either abstain from sexual contact with others or, at least, to warn others of the infection prior to having contact with them."[5] Knowledge that one is infected with a communicable disease likely imposes a duty to take measures to prevent transmission of the disease to others. The thornier question is what constitute the circumstances under which one should know that they have a communicable disease? In the case of COVID-19, an argument could be made that exhibiting COVID-19 like symptoms might be sufficient to meet the "should know" standard. But, COVID-19 symptoms are not unique. Persons with the flu and other conditions can exhibit the elevated temperature and cough the can signify a COVID-19 infection. What about asymptomatic individuals? Does knowing that one has been exposed to someone who is COVID-19 positive mean that he or she should assume to be infected? We will have to wait for the courts to address these questions at some point in the future.

In the meantime, there are steps that physicians can take to mitigate the risk of a patient or employee claiming that he or she contracted COVID-19 from the physician, the physician's staff, patients, or the presence of the COVID-19 virus on surfaces in the physician's office. The initial line of defense, of course, is to try to prevent the transmission of COVID-19 in the first place. Following federal, state, and local guidance for prevention of COVID-19 transmission not only helps to prevent transmission of the virus, it also provides a good argument that the physician acted reasonably (non-negligently). Based on the physicians we work with on a regular basis, it is my impression that most physicians are taking the risk of COVID-19 transmission very seriously and carefully following the recommendations of federal, state, and local health officials. Nonetheless, the risk of COVID-19 transmission cannot be completely eliminated.

To manage the risk of COVID-19 transmission, some commentators have suggested that physicians ask their patients to sign a COVID-19 release or liability waiver. Should the physician choose to utilize a release or waiver, it should be drafted in a manner that is understandable to the average person and in a typeface that is sufficient in size so as to be easily legible. It is important that the practice makes reasonable efforts to make sure that patients signing such a release or waiver understand precisely what they are signing. Keep in mind that liability waivers or releases are effective only against simple negligence and cannot protect against reckless or intentional contact. Also, make sure that the language of the waiver or release is not overly broad and is specific to the risk of COVID-19 infection. Courts tend to frown upon releases or waivers that try to cover the waterfront of risks. Courts will also consider whether the patient had a meaningful opportunity to review and either accept or reject the waiver. Accordingly, the earlier in the process the patient is presented with the release or waiver, the better.

A very important tool for protecting against liability for COVID-19 transmission is informed consent. Through the use of a well-crafted informed consent disclosure, the physician can both inform patients about the risks associated with COVID-19 and inform them about the steps the practice is taking to prevent transmission of the disease. For office visits, the informed consent disclosure could include language stating that the patient understands and accepts the risk of a COVID-19 infection and has declined the option of a telehealth visit, if telehealth is available. These steps would include the practice's expectations for patients, such as wearing a mask, social distancing in the office, hand washing, etc., and the practice's response in the event a patient refuses to follow the practice's safety protocols.

Physicians should also review their malpractice insurance policies to determine whether they cover the risk of COVID-19 transmission. If not, consider purchasing separate or additional coverage that is specific to COVID-19 related risks.

The risk of patients or employees coming to your office with a COVID-19 infection is not going away anytime soon. Physicians should think carefully about how to manage the risk.