Maine Health Care Providers Ask Mills For Legal Immunity During Coronavirus Emergency

Apr 25, 2020

More than a dozen Maine health care industry groups representing hospitals, nursing homes, doctors and others are asking Gov. Janet Mills for civil and criminal immunity during the civil state of emergency caused by the coronavirus pandemic.

The request asks Mills to suspend the laws holding health care providers and their employees responsible for death or injury during the state of emergency related to them providing services, denying care or reallocating resources while following state or facility guidelines around the pandemic. It also asks that those entities and professionals be protected from losing their licenses during the emergency.

There would be an exception from the immunity for harm due to gross negligence.

Health care providers are seeking similar protections across the country as the pandemic continues. Secretary of Health and Human Services Alex Azar issued guidance to governors late last month advising them to shield health care providers from liability so they can “feel comfortable serving in expanded capacities on the frontlines of the COVID-19 emergency.”

Because Maine’s Legislature has adjourned, the action would need to come through an executive order from the governor. Mills spokesperson Lindsday Crete said the governor’s office received the request on April 9 and is still reviewing it.

The request states that removing the liability concern will allow health care professionals to “focus their time and attention on meeting patients’ needs.” It characterized the request as urgent because the crisis was expected to peak within 10 days of its submission.

Rick Erb, president and CEO of the Maine Heath Care Association, which represents nursing homes in the state, said the nature of the virus has raised “liability concerns that are unique” for all health care providers.

Nursing home residents are particularly vulnerable to the virus because of their age and close living quarters. Six long-term care facilities have seen outbreaks — three or more cases in a single facility — since the virus was first detected in Maine over a month ago. As of Friday, 133 nursing home residents and 78 staff members across the state had tested positive for the coronavirus, and 25 residents had died.

The number of infected nursing home residents was greater than the number of people hospitalized in Maine with the coronavirus as of Friday. The number of hospitalizations was 39.

The request specifically touches on liability that could be related to the nationwide shortage of personal protective equipment and diagnostic testing for the coronavirus. The circumstances creating those shortages were “outside the control of the individuals who will have to make difficult decisions regarding care,” the request states. As a result, those health care providers should not face charges or lawsuits if they did the best they could, the request states.

Jeff Austin, vice president of government affairs and communications for the Maine Hospital Association, said its members were particularly concerned about having to reallocate resources in the event of a surge in cases. He pointed specifically to ventilators, which are crucial in caring for coronavirus patients with severe respiratory symptoms.

He said he has not heard of any liability issues caused by the pandemic yet, but the organization wanted to explore the protections regardless. “These are tough medical ethics issues,” Austin said.

But Taylor Asen, a medical malpractice lawyer with the Lewiston firm Berman & Simmons, said state law already makes bringing medical malpractice suits difficult and that providers are protected as long as they take reasonable care to protect patients.

Giving “blanket immunity” to providers, he said, would be “really dangerous and adverse to public health.”

If providers are not doing their best to protect patients, “then the victims should be able to hold them accountable,” he said. “And we shouldn’t be giving them immunity until we know that.”

This story appears through a media sharing agreement with Bangor Daily News.