The Coronavirus Aid, Relief, and Economic Security (CARES) Act, passed by Congress and signed into law by President Trump on March 27, provides relief for Americans feeling the economic effects of social distancing, remote working, widespread closure of businesses and unemployment. A lesser known provision of the Act, Section 3215 ‘Limitation on Liability for Volunteer Health Care Professionals During COVID–19 Emergency Response,’ provides a different form of relief for certain health care professionals, specifically relief from potential legal liability from medical malpractice claims or lawsuits. Notably, the limited liability provision of the CARES Act only applies to volunteer health care professionals.

Last week, Governor Cooper took the idea of limited liability for health care workers responding to COVID-19 a step further. Executive Order No. 130, entered April 8, extends N.C. Gen. Stat. § 166A-19.60, the statute establishing limited liability for “emergency management workers,” to health care workers providing health care services to patients affected by COVID-19. The Executive Order protects health care workers from legal liability for death or personal injury except in cases of willful misconduct, gross negligence, or bad faith. While the Order applies to all health care workers, both paid and volunteer, it does not extend to health care organizations to the extent they maintain professional liability insurance, as the availability of insurance is deemed to be a waiver of any immunity from liability. Governor Cooper’s Order will remain in effect for sixty (60) days.

Your Parker Poe team is working to broaden these initial steps taken at the federal and state level to protect all North Carolina healthcare providers from legal liability during this unprecedented time. We have consulted with hospital clients and leaders in the health care community on a proposed amendment to Chapter 90 of the North Carolina General Statutes to establish limited liability for all health care providers dealing with the challenges of COVID-19, regardless of their volunteer status and regardless of the availability of professional liability insurance. The proposed amendment to the medical malpractice statute in North Carolina would limit medical malpractice liability during the COVID-19 crisis, including liability for claims of alleged “administrative negligence,” to only those claims involving gross negligence. All other claims of medical negligence arising as a result of the COVID-19 crisis would be barred. It remains to be seen whether this proposed amendment to the medical malpractice statute will become law in North Carolina.

For more information, please contact us or your regular Parker Poe contact.