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Call for Additional Protection for New Jersey Medical Providers

Monday, March 30, 2020

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Re: Call for Additional Protection for New Jersey Medical Providers

Dear Governor Murphy:

Thank you for all that you are doing to protect the people of the State of New Jersey during this unprecedented public health crisis. I write to respectfully request that you consider offering additional protections under our Good Samaritan law to our healthcare workers who are tirelessly and selflessly putting themselves on the front lines.

By way of background, I am privileged to be a principal for a New Jersey-based not-for-profit malpractice insurance carrier that insures hundreds of private practice physicians who are committed to excellence in patient care. Over the past several days, our organization has fielded many new calls from insured doctors seeking guidance when they have been asked to treat patients outside of the scope of their specialty at their hospitals. Oftentimes this is to monitor patients as other treating doctors are infected or, more tragically, to be called into service as there are simply not enough physicians to test, treat and care for Coronavirus (COVID-19) patients. As a physician advocate and principal of a medical malpractice insurance provider, I feel obligated to raise awareness of the critical need for these valued professionals and their families to be financially protected during these times.

The doctor's Hippocratic Oath, a pledge upon entering the medical profession that dates back centuries, still holds true today and includes a vow to treat the sick with all measures. But now more than ever in our lifetime this oath is being tested as doctors and medical professionals at every level are being stretched beyond their limits. When most people with the slightest hint of a fever or cough are panicking that they might have contracted this deadly virus, physicians are selflessly putting the safety of themselves and their loved ones at risk to help and protect patients in need.

At the same time, the people and our government must also do our part and make sure healthcare workers are protected too. While most of the media's attention has understandably focused on the physical protection of medical staff from the deadly COVID-19 virus, little or no attention has been focused on the financial and legal protections that they need and deserve. Most of these medical providers have parents, spouses and children, just like the rest of us. Yet they rush into a "burning building," not pausing to think about future lawsuits that may arise out of their noble acts.

The problem lies in the fact that state Good Samaritan laws, like that in New Jersey, were written only to protect healthcare providers if they provide treatment without compensation and when such treatment is rendered during a circumstance of an imminent danger (like rendering help at a car accident site or a heart attack on an airplane). More specifically, the statute provides immunity only when one "in good faith renders emergency care at the scene of an accident or emergency to the victim or victims thereof, or while transporting the victim or victims thereof to a hospital or other facility where treatment or care is to be rendered[]." N.J.S.A. 2A:62A-1. Indeed, by case law, physicians who assist a patient in the hospital who is experiencing a medical emergency cannot invoke the protections of the statute. See Velazquez ex rel. Velazquez v. Jiminez, 172 N.J. 240, 262 (2002).

Based on the current language, it does not specify that a state of emergency declared by the Governor qualifies to provide that immunity. Likewise, by its terms, the statute only encompasses treatment provided at the scene of an accident/emergency or in transport to the hospital from such scene. Under the current, unprecedent circumstances, the scene of the emergency is the hospital itself. Yet, the current state of the law deprives medical providers of protection in the one setting where most, if not all, of the difficult and crucial work in caring for COVID-19 victims will take place. From retired doctors and nurses volunteering to return to the front lines or physician specialists who work outside their traditional practice scope or certification to assist within ICUs, CCUs, emergency rooms and other areas, most of these healthcare workers in these current circumstances are not meeting the type of criteria contemplated with the current language of the law.

As such, these healthcare providers could be exposed to financial risk in the future for their acts of kindness during this declared state of emergency. Compounding this problem further is that the doctors' malpractice insurance coverage cannot provide any layer of protection because these acts would often violate their current guidelines for treatment, such as a practitioner acting outside their medical board specialty, which would typically be excluded. Even if their malpractice insurance policy provided some level of coverage for these acts, the mere fact that these doctors would be less qualified and experienced than the traditional physicians in that subspecialty who would normally be performing this role (for example, an anesthesiologist who is acting temporarily as an intensivist in an ICU) forces that caregiver to be openly criticized years later when they are sued, leaving them, if they survive, or their family's personal assets at risk.

Similarly, while physicians are being urged to utilize telemedicine and elective surgeries are being postponed during this time so hospitals can reserve their resources for COVID-19 patients, the nontraditional use of telemedicine instead of a face-to-face office visit leaves physicians exposed to malpractice claims in the future as well.

The federal government to some degree has recognized the void in the protection of doctors and other medical professionals during this pandemic, so the U.S. Department of Health and Human Services issued a Notice pursuant to the federal Public Health Service Act, which provides immunity for certain activities related to medical countermeasures against COVID-19. However, the Notice only covers licensed health professionals when administering any "qualified pandemic or epidemic products." Referenced as "medical countermeasures," this includes medications, supplies and devices authorized for emergency use for the treatment, prevention or diagnosis of Covid-19/SARS-CoV2. Notably it still holds physicians liable for "willful misconduct," but it is clear that the sentiment behind this Notice is to allow medical professionals to use experimental drugs or devices on an emergent basis without fear of liability for a bad outcome. The challenge is while the law changes by the minute, the Notice does not seem to account for providing protection for doctors and their acts or omissions that do not specifically involve these listed medical countermeasures.

This federal Notice is a strong first step in protecting New Jersey and the entire medical community from the looming threat of lawsuits when they act quickly and outside their traditional areas of practice to assist in the pandemic, but we need to expand this to provide greater protection and give these caregivers peace of mind right now.

I therefore write to respectfully request that you, as Governor, immediately issue an Executive Order to expand the protections of New Jersey's Good Samaritan law in light of the state of emergency created by the novel COVID-19 pandemic outbreak. The current statute has three key components: 1) the situation must represent a true imminent medical emergency; 2) the care rendered by a medical professional must be free of charge; and 3) medical professionals must act in "good faith." I respectfully urge you to offer additional protection to healthcare workers as follows:

  1. Expand New Jersey's "Good Samaritan" legislation to include physicians and other medical staff specifically when helping during this state of emergency related to a pandemic (i.e., COVID-19), whether or not they ultimately are paid at all for their services;
  2. Expand the "Good Samaritan" legislation to specifically include physicians and other health care professionals offering services outside their specialty and/or certification.
  3. Expand the "Good Samaritan" legislation to protect those doctors practicing telemedicine/telehealth in an effort to free up facilities, equipment and resources for COVID-19 patients by relaxing the standard of care to gross negligence or recklessness as they conduct virtual appointments due to the pandemic.
  4. Additionally or alternatively, should you be disinclined to broaden the reach of civil immunity, at a minimum, impose a heightened burden of proof for any professional negligence claim flowing from treatment provided related to this pandemic during the state of emergency. For example, subjecting medical providers to liability only for "gross negligence" or "recklessness," as distinguished from the standard for professional negligence applicable in ordinary circumstances.

While changes to official laws and bills can take months or even years, your actions now to protect the healthcare workers who are so selflessly working around the clock will protect us all. We can see there is no time to waste as the numbers continue to rise day by day, hour by hour. Yes, I intend to propose such changes when the legislative quorums are once again possible. In the meantime, I respectfully urge that your office take all necessary steps to protect our healthcare providers in these historic and uncertain times.

I thank you for your time and consideration and, again, for all of your efforts to protect New Jersey citizens from this pandemic. Please stay healthy and safe, and do not hesitate to contact me should you have any questions about this proposal.

Respectfully,

Eric S. Poe, Esq., CPA
Principal
New Jersey Physicians United Reciprocal Exchange (NJ PURE)



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