An Overview of Liability Immunity and Licensure Allowances

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Due to the coronavirus pandemic, many clinicians find themselves providing care to patients in a manner that they never anticipated. While the CARES Act provides liability immunity for volunteers, states have been encouraged to implement their own liability waivers along with declarations of emergency.

While no waiver or liability protection can completely protect a healthcare worker, clinicians should understand these expansions and take them into consideration when determining their comfort level for providing care to patients in their own state or other states, expanding their scope of practice, conducting telehealth services, etc. It’s especially important to know these waivers and liability protections are time limited with each state’s emergency status and do not include protections for acts of gross negligence or willful and wanton conduct.

This article examines waivers and liability protections in ten key states. For a complete list of states that have implemented liability protections or expedited licensure or re-licensure processes can be found here at the National Governors Association website.

Alabama

Existing Good Samaritan Law in Alabama provides liability immunity to healthcare workers who are part of a recognized organization intended for rescue or relief effort. Additionally, a person who in good faith and without compensation renders emergency care or treatment to a person suffering or appearing to suffer from cardiac arrest, including use of an automated external defibrillator, is immune from civil liability as long as the person acts as an ordinary prudent person would have acted under the same or similar circumstances.

A Proclamation by the Governor expanded scope of practice for healthcare workers and relaxed restrictions for practitioners with out-of-state licenses and expired licenses.

Healthcare facilities that have invoked their emergency operation plans in response to the pandemic may implement the “alternative standards of care” plans provided therein. Those alternative standards of care are declared to be the state-approved standard of care in healthcare facilities to be executed by healthcare professionals and allied professions and occupations providing services in response to this outbreak.

Alabama is expanding the scope of practice by allowing clinicians licensed in other states to practice in Alabama. Physicians practicing outside of a licensed healthcare facility shall have temporary emergency approval for collaboration agreements with APRNs and physician assistants, not exceeding nine FTEs or 369 hours per week.

Alabama is allowing expedited license reinstatement to those who maintained good standing while they practiced in Alabama, who have no disciplinary history in Alabama or elsewhere, and who are competent to practice medicine with reasonable skill and safety to patients.

Colorado

Colorado has not implemented alternate standards of care, but has implemented Crisis Standards of Care for EMS and PPE allocation. A triage system to be used in the event that a hospital is not able to adequately care for everyone who presents for treatment, but a formal directive has not come down from the state. Each hospital can make their own decision regarding whether to implement CSC triage criteria based on their hospital’s unique circumstances.

Colorado is allowing for out-of-state licenses to practice in Colorado, and providing a 60-day grace period for professionals with lapsed or expired licenses. Clinicians must have maintained good standing while they had active licenses. 

Florida

Florida’s existing Good Samaritan includes liability waiver for a public health emergency.

Georgia

An Executive Action states that healthcare workers engaged in emergency management activities may not be held liable for death or injury to person or for damage to property, except in cases of willful misconduct, gross negligence, or bad faith.   

Georgia is also granting temporary licenses to out-of-state physicians in good standing. 

Illinois

Illinois’ existing Good Samaritan Act states that healthcare professionals who volunteer their time (provide emergency care without fee) should be exempt from civil liability unless such acts demonstrate willful or wanton misconduct. An Executive Order in Response to COVID-19 grants healthcare facilities, healthcare professionals and healthcare volunteers immunity from civil liability for any injury or death that occurs at a time when the person was acting in response to COVID-19, except in cases of gross negligence or willful misconduct.

Illinois Department of Financial and Professional Regulation (IDFPR) is allowing clinicians with expired licenses or licenses inactive for less than three years to reactivate for no fee or CE requirement to work in response to the COVID-19 pandemic. Out-of-state clinicians in good standing may also practice in Illinois in a limited set of circumstances, but must provide contact information and dates of arrival and departure on forms provided by IDFPR.

Kentucky

Kentucky Senate Bill 150, which was signed by the governor and titled An Act relating to the state of emergency in response to COVID-19 and declaring an emergency, stated that healthcare providers who in good faith render care or treatment of a COVID–19 patient during the state of emergency shall have a defense to civil liability for ordinary negligence for any personal injury resulting from said care or treatment, or from any act or failure to act in providing or arranging further medical treatment, if the healthcare provider acts as an ordinary, reasonable, and prudent healthcare provider would have acted under the same or similar circumstances

The Act addressed telehealth; allowing providers to conduct telehealth visits for new patients and with proper licensing, and allowing providers in other states to provide telehealth to Kentucky residents. It also allowed the Kentucky State Board of Medical Licensure, the Kentucky Board of Emergency Medical Services, and the Board of Nursing to relax scope of practice restrictions to best serve the interest of the public health, safety, and welfare during the state of emergency related to COVID-19. The Kentucky Department of Insurance issued a guidance statement following the signing of the Act into law, recognizing that healthcare providers may be temporarily providing healthcare services outside their scope of practice in accordance with guidance issues through the licensure boards, that retired providers or providers licensed in other states may provide healthcare services in Kentucky, and that healthcare services may be provided at locations other than where those services are typically performed or through telehealth platforms.

North Carolina

North Carolina implemented an Executive Order to help meet health and human services needs by allowing the following people to practice: clinicians with licenses from other states; inactive or retired clinicians; skilled, but unlicensed clinicians; and students at an appropriately advanced stage of professional study to practice. Clinicians must disclose if they are practicing under loosened licensure restrictions. 

The same Executive Order states all persons participating in a response authorized by the State Director of Emergency Management shall be considered emergency management workers as defined in NC Gen Stat s. 166A-19.60(e). In North Carolina, all healthcare workers are considered emergency management workers during a public health emergency, and all healthcare workers were requested to provide emergency services to respond to the pandemic. North Carolina’s Executive Order stated that all emergency management workers should be insulated from civil liability, except in cases of willful misconduct, gross negligence, or bad faith. 

South Carolina

Existing emergency health laws in South Carolina allow for any healthcare provider appointed during a state of public health emergency must not be held liable for any civil damages as a result of medical care or treatment including, but not limited to, trauma care and triage assessment, related to the appointment of the healthcare provider and the prescribed duties unless the 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 the patient.

South Carolina Board of Medicine and Board of Nursing have instituted procedures to issue temporary licenses on an expedited basis (by application for out-of-state physicians, physician assistants, respiratory therapists, and non-compact state nurses).

Tennessee

An Executive Order increases the healthcare workforce by waiving fees, notary requirements, interview requirements, and CE requirements for licensure or re-licensure of healthcare professionals. Additionally, Tennessee has waived the requirement for on-site inspections for laboratories if the laboratory is physically located in the same location as an existing clinic where patients have been seen in the previous 30 days.

Virginia

An Executive Order waived the requirements for fee and CE to reinstate or reactivate a license for a doctor of medicine or osteopathic medicine, a physician assistant, or a respiratory therapist who held an unrestricted, active license issued by the Board within the past four years. Virginia also allows for expedited licensure for medicine, osteopathic medicine, physician assistant, podiatry, and respiratory therapy with reduced documentation requirements.

Virginia has existing law stating that in the absence of gross negligence or willful misconduct, any healthcare provider who responds to a disaster shall not be liable for any injury or wrongful death of any person arising from the delivery or withholding of healthcare when a state or local emergency has been declared and the emergency and subsequent conditions caused a lack of resources, attributable to the disaster, rendering the healthcare provider unable to provide the level or manner of care that otherwise would have been required in the absence of the emergency and which resulted in the injury or wrongful death at issue. 

Additional Resources:

• Wilson Elser, LLP – Medical Malpractice & COVID-19: A Comparative Law Review
• Smith Amundsen, PC – Liability Immunity for Health Care Providers During the COVID-19 Crisis