Limitation on Liability for Volunteer Health Care Professionals During COVID-19 Emergency Response

H.R. 748, The Coronavirus Aid, Relief, and Economic Security Act (CARES ACT), includes an important provision (Section 3215) for health care providers who provide volunteer care during the current crisis. In general, Section 3215 grants protection from medical malpractice lawsuits to volunteer healthcare workers who provide care within the general scope of their practice to victims of COVID-19. The provision includes reasonable exceptions, including those for gross negligence and care provided while under the influence of drugs or alcohol, but the overall effect of the provision should allow those who have the capacity and selflessness to use their capabilities for the greater good to do so without jeopardizing their financial future.

The full text of the CARES ACT’s provision regarding volunteer heath care professionals can be found here:

SEC. 3215. LIMITATION ON LIABILITY FOR VOLUNTEER HEALTH CARE PROFESSIONALS DURING COVID-19 EMERGENCY RESPONSE.

(a) LIMITATION ON LIABILITY.—Except as provided in subsection (b), a health care professional shall not be liable under Federal or State law for any harm caused by an act or omission of the professional in the provision of health care services during the public health emergency with respect to COVID-19 declared by the Secretary of Health and Human Services (referred to in this section as the ‘‘Secretary’’) under section 319 of the Public Health Service Act (42 U.S.C. 247d) on January 31, 2020, if—

(1) the professional is providing health care services in response to such public health emergency, as a volunteer; and

(2) the act or omission occurs—

(A) in the course of providing health care services;

(B) in the health care professional’s capacity as a volunteer;

(C) in the course of providing health care services that—

(i) are within the scope of the license, registration, or certification of the volunteer, as defined by the State of licensure, registration, or certification; and (ii) do not exceed the scope of license, registration, or certification of a substantially similar health professional in the State in which such act or omission occurs;and

(D) in a good faith belief that the individual being treated is in need of health care services.

(b) EXCEPTIONS.—Subsection (a) does not apply if—

(1) the harm was caused by an act or omission constituting willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious flagrant indifference to the rights or safety of the individual harmed by the health care professional; or

(2) the health care professional rendered the health care services under the influence (as determined pursuant to applicable State law) of alcohol or an intoxicating drug.

(c) PREEMPTION.—

(1) IN GENERAL.—This section preempts the laws of a State or any political subdivision of a State to the extent that such laws are inconsistent with this section, unless such laws provide greater protection from liability.

(2) VOLUNTEER PROTECTION ACT.—Protections afforded by this section are in addition to those provided by the Volunteer Protection Act of 1997 (Public Law 105–19).

(d) DEFINITIONS.—In this section—

(1) the term ‘‘harm’’ includes physical, non-physical, economic, and noneconomic losses;

(2) the term ‘‘health care professional’’ means an individual who is licensed, registered, or certified under Federal or State law to provide health care services;

(3) the term ‘‘health care services’’ means any services provided by a health care professional, or by any individual working under the supervision of a health care professional that relate to—

(A) the diagnosis, prevention, or treatment of COVID-19; or

(B) the assessment or care of the health of a human being related to an actual or suspected case of COVID-19; and

(4) the term ‘‘volunteer’’ means a health care professional who, with respect to the health care services rendered, does not receive compensation or any other thing of value in lieu of compensation, which compensation—

(A) includes a payment under any insurance policy or health plan, or under any Federal or State health benefits program; and

(B) excludes—

(i) receipt of items to be used exclusively for rendering health care services in the health care professional’s capacity as a volunteer described in subsection (a)(1); and

(ii) any reimbursement for travel to the site where the volunteer services are rendered and any payments in cash or kind to cover room and board, if services are being rendered more than 75 miles from the volunteer’s principal place of residence.

(e) EFFECTIVE DATE.—

This section shall take effect upon the date of enactment of this Act, and applies to a claim for harm only if the act or omission that caused such harm occurred on or after the date of enactment.

(f) SUNSET.—This section shall be in effect only for the length of the public health emergency declared by the Secretary of Health and Human Services (referred to in this section as the ‘‘Secretary’’) under section 319 of the Public Health Service Act (42 U.S.C. 247d) on January 31, 2020 with respect to COVID-19.

For questions contact the author William A. Ramsey at war@barrettlaw.com or at (260) 423-8824 or a member of Barrett McNagny's medical malpractice defense team or health care team

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