Immunity Protections Available When Treating COVID-19 Patients

by Daniel J. Schulte, J.D., MSMS Legal Counsel

QUESTION:

Physicians have been prescribing drugs and providing other treatments to COVID-19 patients that are for the most part untested.  They certainly have not been subjected to governmental review and approval processes.  Nor have they been examined by any peer review body.  Instead, these treatments are selected based mainly on anecdotal evidence of success without the experience required to fully understand side effects and the long-term effects of their use. Can you explain the immunity protections recently made available?  Will they protect physicians prescribing these treatments?    

ANSWER:

There have long been several different types of immunities provided to health care providers under Michigan and federal law.  Some are applicable to physicians and others who volunteer.  Others are applicable in times of a declared state of emergency or disaster.  The recent additions to these immunities that are directly relevant to your question are contained in Governor Whitmer’s Executive Order 2020-30 and Section 3215 of the federal Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”).

Section 7 of Executive Order 2020-30 states:

“Consistent with MCL 30.411(4), any licensed health care professional or designated health care facility that provides medical services in support of this state’s response to the COVID-19 pandemic is not liable for an injury sustained by a person by reason of those services, regardless of how or under what circumstances or by what cause those injuries are sustained, unless it is established that such injury or death was caused by the gross negligence, as defined in MCL 30.411(9), of such health care professional or designated health care facility.”

 

MSMS questioned what was meant by “Consistent with MCL 30.411(4)” and sought clarification from the Governor’s office.  That statute is a part of Michigan’s Emergency Management Act.  It provides that physicians who render services during a state of disaster declared by the Governor and “at the express or implied request of a state official or agency or county or local coordinator or executive body” are considered authorized disaster relief workers and have immunity from claims arising from those services except when the act or omission is willful or constitutes gross negligence.   The concern was that for physicians to have the immunity for treating COVID-19 patients would first have to requested by a state official, agency or coordinator to do so. 

MSMS received a prompt response from the Governor’s office.  It clarified both that: (1) the Governor’s issuance of Executive Order 2020-30 satisfies the “express or implied request” requirement of MCL 30.411(4); and (2) immunity applies wherever the patient is treated (e.g. a government operated field hospital, a private hospital, a physician practice office, etc.).

The immunity provided by Section 3215 of the CARES Act is the same, but it only applies when a physician is acting in a volunteer capacity.  This means the physician is not being compensated or reimbursed in any way other than reimbursement for mileage and being provided personal protection equipment to be used while volunteering.   The CARES Act immunity expressly contemplates immunity being provided by state law.  Its preemption provision states that it preempts inconsistent state law unless the state law provides greater protection from liability.  Executive Order 2020-30 certainly provides greater protection from liability to physicians treating COVID-19 patients, so it is not preempted by Section 3215 of the CARES Act.