Temporary Immunity Provided For COVID-19 Medical Care

Medical Malpractice

The Coronavirus Aid, Relief, and Economic Security (CARES) Act, passed by Congress and signed into law on March 27, 2020, provides temporary immunity regarding COVID-19 emergency treatment from volunteers.

Subsequently in March 2021, the Florida Legislature passed sweeping immunity for medical providers and businesses. This new immunity statute in Florida can be found here. This immunity statute eliminates virtually all legal liability arising from COVID-19.

Volunteer Health Care Professionals Will Get Limited Immunity During Covid-19 Emergencies

Health care professionals who are volunteering during a state of emergency declared for COVID-19 are to be provided with limited immunity for medical malpractice. To receive immunity, the volunteer provider must be working within their designated specialty and have a good faith belief that the patient is in need of health care services. In addition, immunity does not apply to gross negligence, recklessness, or criminal or willful misconduct. This law pre-empts state law that is inconsistent.

Section 4216 of the CARES Act

In addition, many states (including Florida) already had Good Samaritan statutes in place prior to the coronavirus pandemic. These statutes protected anyone volunteering in many circumstances (see section 768.13, Fla. Stat.).

Section 768.13 further protects hospitals with emergency departments with the “reckless disregard” standard as below:

Any health care provider, including a hospital licensed under chapter 395, providing emergency services pursuant to obligations imposed by 42 U.S.C. s. 1395dd, s. 395.1041, s. 395.401, or s. 401.45 shall not be held liable for any civil damages as a result of such medical care or treatment unless such damages result from providing, or failing to provide, medical care or treatment under circumstances demonstrating a reckless disregard for the consequences so as to affect the life or health of another.

The “reckless disregard” standard in Florida is further defined below:

For purposes of this paragraph, “reckless disregard” as it applies to a given health care provider rendering emergency medical services shall be such conduct that a health care provider knew or should have known, at the time such services were rendered, created an unreasonable risk of injury so as to affect the life or health of another, and such risk was substantially greater than that which is necessary to make the conduct negligent.

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March 27, 2020