Twin bills will try to limit malpractice liability related to COVID-19

The first readings of the proposed Health Care Heroes Protection Act took place today as Maryland’s legislative session got under way. The act, which is represented by the twin legislation of HB 25 and SB 311, would protect health care providers from medical liability claims made in relation to the coronavirus pandemic. Delegate Bonnie Cullison is sponsoring HB 25 and Sen. Shelly Hettleman is sponsoring SB 311.

 

Get the latest state-specific policy intelligence for the health care sector delivered to your inbox.

 

The issue is a top priority for the Maryland Hospital Association, according to Nicole Stallings, Maryland Hospital Association senior vice president of government affairs & policy. The act is an update of policies that were last addressed after the 9/11 terrorist attack in New York City in 2001.

“Our current immunity provisions are not adequate,” Stallings said. “This ensures we are really accounting for an all-hands-on-deck approach. COVID will have a long tail and we will continue to treat patients long after the declared emergency is over.”

For example, if an elective procedure or surgery was delayed due to the pandemic and that led to a detrimental outcome, the physicians shouldn’t be held accountable since the delay was out of their control, she said.

“The spirit behind this is that we want to take responsibility for what we can take responsibility for,” said Larry Smith, MedStar Health vice president of risk management. “We know people needed surgery and we know that delaying the surgery causes them harm, but we don’t want our health care providers to be held liable for that harm.”

The impact that coronavirus is having on the health care system is universal across the country, he said.

“We have a broken system and it is already too costly, adding liability claims would add more hurt,” Smith said.

Though high payouts in medical liability cases is a national issue, it is particularly impactful in Maryland which has one of the five highest average settlement rates in the country. In 2019, a family was awarded $229 million award for neurological done to an infant during childbirth. The settlement breaks the record for highest payout.

Such a high payout sets a bar and creates a culture of high payout expectations, which makes passing legislation to protect providers all the more important, Smith said.