In response to the COVID-19 pandemic, Massachusetts has enacted legislation protecting its healthcare workers and facilities from civil liability. Massachusetts is one of several states, including New York, New Jersey, Michigan, Illinois, and Connecticut, that have enacted similar legislation.
The bill, S.2640, was signed into law by Massachusetts Governor Charlie Baker on April 17, 2020. Governor Baker had also issued a directive for the state to maximize the civil protections offered under the federal Public Readiness and Emergency Preparedness Act (PREP), which currently shields healthcare workers and facilities “that distribute and administer testing, drugs, and medical devices for the diagnosis and treatment of COVID-19.” The PREP Act, as the Governor states, is a first step, but still offers limited protections. The passage of S.2640 is to ensure that all healthcare professionals are protected from civil liability in emergency circumstances.
Who and What Does the Bill Cover?
The bill’s stated purpose is “to provide liability protections for healthcare workers and facilities during the COVID-19 pandemic…” and is “necessary for the immediate preservation of the public health and convenience.” Absent exceptions, the bill states that “healthcare professionals and healthcare facilities shall be immune from suit and civil liability for any damages alleged to have been sustained by an act or omission by the healthcare professional or facility in the course of providing health care services during the period of the COVID-19 emergency.” Specifically, healthcare professionals and facilities are immune if:
- Their services were rendered in response to a COVID-19 emergency rule and in accordance with other laws
- Care or treatment of the patient was impacted by the professional’s or facility’s decisions in response to COVID-19, and
- The professional or facility acted in good faith
The health care services covered by the bill are broader than the PREP Act and are defined as:
- Treatment, diagnosis, prevention or mitigation of COVID-19
- Assessment or care for an individual with a confirmed or suspected case of COVID-19, or
- Care of any other individual who presents at a healthcare facility or to a healthcare professional during the period of the COVID-19 emergency.
The types of protected healthcare facilities include not just hospitals, but also mental health facilities, nursing facilities, assisted residences, community health centers, home health agencies, and other “sites designated by the commissioner of public health to provide COVID-19 health care services.” The types of healthcare professionals that are covered are equally broad, with the law defining “healthcare professional” as any individual authorized to provide health services, any student of an academic training program, any nursing attendant or certified nursing aide, as well as other health care facility administrators.
The bill does not just provide immunity for healthcare workers, who are typically covered from liability by their employers, but it also protects volunteer organizations who would not otherwise be part of a facility’s liability policy. Because the pandemic has brought forth a number of volunteers, such as medical students or retired medical professionals, as well as makeshift treatment centers and field hospitals, the bill aims to also include these non-traditional situations. As Senator James Welch argued when the bill was under review, “If you’re trying to utilize as much of the talent as you can when it comes to medical professionals, you want to ensure they’re going to be protected.”
Exceptions Under the Law
The law does not extend immunity in certain enumerated circumstances, such as,
- Acts or omissions constituting gross negligence, recklessness, intentional harm, or discrimination
- Consumer protection actions filed by the Massachusetts attorney general, or
- False claims actions brought by or on behalf of the Commonwealth.
In other words, healthcare workers and their employers can still be held civilly liable for any act or omission that arises to more than mere negligence. What exactly that looks like, of course, is still up for debate. As lawsuits emerge throughout this pandemic, the courts will need to determine whether a healthcare provider’s conduct constitutes something more than negligence for which they can be held accountable.
The law will apply to claims that have occurred during the effective period of Massachusetts’s COVID-19 emergency, which was declared on March 10, 2020, and continue until the emergency declaration is terminated or rescinded.
