New Mass. law creates liability shield for those who treat COVID-19

On April 17, Massachusetts Gov. Charlie Baker signed into law an act designed to provide liability protection for health care workers and facilities treating COVID-19 patients.

The new law, Chapter 64 of the Acts of 2020, provides to health care professionals and health care facilities immunity from suit and civil liability for any damages alleged to have been sustained by an act or omission by the health care professional or health care facility in the course of providing health care services during the period of the COVID-19 emergency.

The facilities covered by the new law include not only state and private hospitals but also skilled nursing facilities, assisted living residences, rest homes, community health centers and mental health centers, home health agencies that participate in Medicare, and clinics.

The law also applies to sites designated by the commissioner of public health to provide COVID-19 health care services, including the field hospitals the state has stood up at the DCU Center in Worcester and the Boston Convention Center and Exhibition Center, along with step-down skilled nursing facilities and hotels.

Providers and facilities will lose their immunity if the damage was caused by an act or omission constituting gross negligence, recklessness, or conduct with an intent to harm or to discriminate based on race, ethnicity, national origin, religion, disability, sexual orientation or gender identity.

The new law also does not apply to consumer protection actions brought by the Massachusetts attorney general or to false claims actions brought by or on behalf of the commonwealth.

Section 3 of the law extends its protections to cover any damages occurring in or at a volunteer organization’s facility, where the damage arises from use of the facility for the commonwealth’s response and activities related to the COVID-19 emergency.

Here, too, suits would still be allowed if it is established that the damages were caused by the volunteer organization’s gross negligence, recklessness, or conduct with an intent to harm.

In a letter accompanying his filing of the bill April 8, Baker said he could not overstate the urgency of enacting it.

“We need to ensure that fear of liability will not prevent the Commonwealth and its medical institutions from acting decisively to deliver the kind of medical response we need during this pandemic,” he wrote.

In conjunction with filing the bill, Baker issued a directive designed to maximize protections for health care workers and facilities under the federal Public Readiness and Emergency Preparedness Act, or PREP Act.

But Baker stressed the bill was still needed because the PREP Act’s limitations on liability only cover the administration of drugs, testing and medical devices for the diagnosis and treatment of COVID-19.