There has been a lot of talk about the malpractice immunity clinicians have or don’t have when it comes to this current COVID-19 pandemic. The short answer is that you are not legally immune, despite everything that’s written into law.
Let’s start with what would be the obvious scenario: you’re a retired doctor, working mostly in your garage rebuilding your classic 1967 Mini Cooper. Right before putting on your first virgin base coat after you mudded on the putty, this whole CV19 business starts.
You’re too old to worry about malpractice risk and have heard that during such fucked up times there is some malpractice immunity.
You decide to jump into action and dust off your white coat and get a provision reinstatement of your medical license. You report to a hospital who needs attending physicians to work on the CV19 unit.
On your first day there you’re given a chef’s apron, a spatula, and some toilet paper to wrap around your face – the hospital’s current PPE digs. You’re not worried, you’re planning on mostly holding your breath throughout your shift.
Volunteer Doctor in the CV19 Unit
It’s a shit-show of patients coming in and out of the COVID unit and you’re not even getting paid for this. But you’re convinced that you’re doing the right thing and so you spend the hours working with the nurses who got a spark in their step.
You walk past a group of nurses and doctors who are lining up to take selfies and selfie-by-proxies of the marks their masks have left on their faces. It’s the first time you hear the word Instagram because your ass is still so MySpace.
You walk into a room to check on a COVID patient who is intubated who is tanking fast. You try to fiddle with the ventilator which is missing the adjustable knobs and cranks you’re used to from your World War days. The RT directs you to the touch screen which is the only color in that entire fucking room.
You decide to increase the PEEP because the patient isn’t oxygenating adequate. You check the heparin drip because you read online that CV19 patients clot up fast. And you ask your colleague what the drug-du-jour is for COVID – today, it’s a combination of birth control pills and an over the counter laxative, which in clinical trials in Botswana have been shown to decrease the mortality by 115%.
Volunteer Malpractice Immunity
You finish your shift and go to the decontamination room where you are sprayed with a mix Jim Beam and Bitters. You wait around for the Maraschino cherry, but, alas, nothing. So you head home.
This was your 3rd shift at the hospital in 3 weeks, not bad, you think you can handle this. Kinda nice being part of the team. And as you’re sitting around contemplating why there are so many obese nurses, the phone rings. You pick up the earphone and crank the wall-hung girly a few times and it’s your hospital administrator.
Dr. Smith, I wanted to discuss a case with you. The family of one of the patients is suing the hospital and you were mentioned in the lawsuit. Not to worry, the CARES stimulus package has made provision to protect volunteer healthcare workers and offers malpractice immunity.
You breathe a sigh of relief, after all, you didn’t wrap your face with toilet paper just to get sued for the very first time in your 42 years of practicing medicine. So, I’m off the hook right, you ask.
Oh, no, sorry, that’s not how it works. We’re still going to deal with their lawyers and go through discovery and the standar subpoena. It’s just that in the end, if the case truly falls within the very narrow scope of this CARES act, then they’ll pay out the malpractice.
Well, shit, at least you don’t have to apply for any new jobs after this and report a malpractice suit on your application.
A Live Attending in Times of COVID
Okay, I know, that example didn’t go too well. I hope you don’t have any high hopes for this next scenario.
You’re a 42 yo overworked hospitalist who covers 3 hospitals and commute 2 hours home 8 days a week. And you’ve have to step up your game because the other smart doctors all conveniently contracted mild covid and are home watching Netflix.
It does kinda suck but you’re looking at your bank account online, and you’re seeing all those zeros, man, the hospitals really stepped it up and you start seeing kittens and hearts when you think of their financial generosity in reimbursing front-line physicians.
So, then you wake up from that dream, realize that you’re late for work and broke as a joke. You jump out of bed and give your cat a dirty look for being so deep asleep that she’s drooling. Fucker.
You slam the door to the shitter, hoping it woke up the cat. You get in the shower and wonder how much COVID is coating that shower drain. You’re ready to save lives and cure some mother-f-ing COVID.
Hospitalist Legal Immunity
You feel a little happier these days heading into work because there is less traffic on the road. Just the crackheads dealing toilet paper in the alleys and the Main St hookers who seem to have more PPE attire than your physician colleagues.
You recall reading an article while half-asleep about the Public Readiness and Emergency Preparedness (PREP) Act which grants total immunity to all involved in the countermeasures when dealing with a pandemic.
This PREP deal was announced for this pandemic on 3/17/2020 and is active retroactively starting 2/4/2020 and can be in effect until the pandemic ends, or as long as 10/1/2024.
On your way to work, with a coffee cup in one hand, your cell phone in the other, and your magic Tesla self-driving you to work, you look up what a “covered countermeasure” is.
Countermeasure! Shit, that used to be your fraternity nickname back at USC. You got this. And, lucky you, pretty much any care you provide that directly or indirectly deals with the epidemic is covered:
- operating a ventilator
- administrating the newest experimental unapproved drug
- a vaccine that a teenager created in his basement
- a magic spell prescribed by the Functional Medicine doctor – who is also an acupuncturist and grows herbs in his 12 sqft studio
Okay, you’re good. You CANNOT be sued. Oh, wait, there is more …
You can be sued. Nothing and nobody will stop someone from suing you. The case will be heard and it will determined if the matter was a general misconduct, such as a negligence, in which case it will be dismissed, or if it was a willful misconduct.
A willful misconduct is exactly what it sounds like, more than your garden variety negligence, but actually trying to intentionally harm a patient.
Much like our vaccination program, you can’t really sue a vaccine manufacturer. There is a fun set aside for those who have a severe, adverse reaction from a vaccination side effect.
They can request compensation from this vaccine fund, in the case of a vaccine problem. It’s offers some malpractice immunity – but how much malpractice do vaccine manufacturers have to really worry about?
And there is money also set aside with the PREP Act to compensate individuals who had major adverse events from COVID. And this is what some lawyers might be misinterpreting as what you and I might understand as legal immunity.
But, you CAN still get sued, regardless of what you read. And it’ll be up to a judge and maybe a jury to decide whether your particular case falls under any of the above situations mentioned above.
Medical Board Investigations
There is no provision which protects you from the claws of the medical boards.
There is nothing protecting you from your employer firing you if you didn’t do everything they wanted. Or if you said something negative about them on social media.
There is nobody and nothing protecting you from losing your in-network status with Medicare or Medicaid if you are found to have handled something improperly.
My friends, even a fucking face-of-the-earth wiping pandemic apparently won’t stop American legislature from halting malpractice suits.
Much like the mighty cockroach, and genital herpes, a malpractice suit can survive any fallout. It’s here to stay and you’re not escaping it just because you felt heroic for jumping in to help.
Malpractice immunity is great lawspeak for JD’s who run of things to discuss, but there is no such thing.