We previously wrote about healthcare provider liability during a Pandemic. You can read the entire blog entry here. Since that blog was posted to our website, Louisiana Attorney General Jeff Landry issued a memorandum addressing healthcare providers’ concerns over the prescription of Hydroxychloroquine and Zithromax to COVID-19 patients. The AG’s memorandum also analyzes how Louisiana liability laws stack up in comparison to the New York laws that have garnered so much media attention over the last few weeks. The following is a short summary of the information contained in the AG’s memorandum.
Hydroxychlroroquine and Zithromax have been pushed aggressively by certain sectors of the government and its use to combat the virus pending a vaccine is a hot topic of conversation in the media. Many doctors, however, remain skeptical of its efficacy in treating COVID-19 and are concerned with unintended side effects. Presumably to help put healthcare providers at ease, the Attorney General’s memorandum states that any doctor who prescribes these drugs to patients in Louisiana in connection with the COVID-19 epidemic and in accordance FDA approval guidelines should fall within the immunity statutes in Louisiana protecting healthcare providers from liability, absent gross negligence. The Attorney General does limit his opinion, to some extent, by stating that the facts and circumstances of each case must still be considered and makes it clear that immunity under Louisiana law does not necessarily protect a provider from federal law claims concerning the use of these medications.
As to potential federal law claims that would not be immune under Louisiana law, is important to note that the U.S. Department of Health and Human Services (HHS) has already issued a Declaration to limit liability for companies and providers engaged in medical countermeasures against this pandemic. Specifically, the Declaration provides “…liability immunity to certain individuals and entities (Covered Persons) against any claim of loss caused by, arising out of, relating to, or resulting from the manufacture, distribution, administration, or use of medical countermeasures (Covered Countermeasures), except for claims involving 'willful misconduct' as defined in the Public Readiness and Emergency Preparedness Act.” Licensed physicians are included within the definition of Covered Persons and physicians sued for negligence in prescribing the wrong dose of a drug to combat COVID-19 is a specific example of an action entitled to immunity under the HHS Declaration. Thus, the HHS Declaration and the Public Readiness and Emergency Preparedness Act may, under certain circumstances, offer protection to Louisiana healthcare providers on the front lines who are sued for negligence under federal law.
The AG’s memorandum also analyzed the difference between Louisiana and New York law on healthcare liability during a public health emergency. Louisiana Health Emergency Powers Act, La. R.S. 29:760, et. seq. (“LHEPA”), provides that, during a state of public health emergency “any health care providers shall not be found civilly liable for causing the death of, or, injury to, any person or damage to any property except in the event of gross negligence or willful misconduct.” By comparison, New York’s Governor Cuomo recently issued an Executive Order for a temporary suspension an modification of existing healthcare liability law that states in pertinent part: “all physicians, physician assistants, specialist assistants, nurse practitioners, registered nurses, and practical nurses shall be immune from civil liability for any injury or death sustained directly as a result of an act or omission by such medical professional in the course of providing medical services in response to the COVID-19 outbreak, unless it is established that such injury or death was caused by gross negligence.”
The Attorney General’s memorandum makes a strong case for why Louisiana law is actually more favorable for our healthcare providers than those recently put into effect in New York. While both state laws provide the heightened “gross negligence” standard, the Attorney General’s memorandum makes it clear that Louisiana law protects all healthcare providers as opposed to only the six categories of healthcare providers listed in New York’s law. Secondly, and perhaps the most important distinction between the two states, the AG’s memorandum points out that New York’s law is only triggered by or related to a provider’s treatment in response to COVID-19 whereas Louisiana’s law is written more broadly to protect all providers performing any kind of medical treatment during the duration of the public health emergency. Third, the AG’s memorandum points out that Louisiana law extends to injury, death and property damage whereas New York’s law only extends to injury or death. Lastly, the Attorney General’s memorandum states that any attempt to alter the current immunity statutes, either through statute or executive order, during the course of the public emergency will likely be declared unconstitutional.
Of course, every situation must be judged on its own set of facts and circumstances, but the AG’s memorandum only reinforces Louisiana’s statutory protections afforded to our healthcare providers during the duration of the public health emergency declared by Governor Edwards. In sum, Louisiana law and certain federal statures are favorable for a healthcare provider whose treatment of patients here in Louisiana is called into question during this pandemic.