Amidst the chaos of 2020, COVID-19 immunity legislation quietly proceeds through the Ohio legislature. If Sub. H.B. 606 passes and is signed into law, it will provide broad immunity to healthcare workers who committed malpractice from March 9, 2020 through December 31, 2020.
Sub. H.B. 606
Sub. H.B. 606 would give immunity to doctors and hospitals for any negligent errors they’ve made since March 9 and also for all negligence that hasn’t yet happened but will happen before December 31.
The immunity applies unless the doctor or hospital disregarded an “unjustifiable risk” with “heedless indifference.” In other words, the new legislation would give a free pass to all doctors and hospitals who seriously harm or kill a patient through negligence, leaving them responsible only for reckless behavior, which is nearly impossible to prove. In practice, this legislation essentially proposes blanket immunity for the medical profession.
This legislation is unprecedented in Ohio’s 230 years of history. The H.B. 6 scandal that recently came to light shows what happens when a powerful constituent with lots of money urges Ohio legislators to provide it with protection, and this proposed legislation has the same feel.
Dangers of COVID-19 Immunity Legislation
Under existing law, the minimum standard of care requires a doctor to perform duties that “a physician of reasonable skill, care, and diligence would do under like or similar conditions or circumstances.” If a doctor fails to meet this minimum standard of care, the doctor commits malpractice. This standard, which protects citizens from medical negligence while also recognizing that doctors aren’t perfect, has existed in Ohio for generations.
The minimum standard of care has always allowed a jury to consider the conditions and circumstances a doctor faces. That’s why blanket immunity for medical errors that happen during a pandemic is not needed. Under the standard we already have, a jury can take into account circumstances during the pandemic, such as whether doctors or nurses were available, the state of medical knowledge at the time, and what treatments were accessible.
Blanket immunity is dangerous to our community. If it passes, this bill would grant immunity for healthcare provided “as a result of or in response to any disaster or emergency,” even if the emergency is unrelated to COVID-19. If a person has a stroke and goes to the ER, that person receives healthcare “as a result or in response to an emergency.” Should medical providers receive immunity if they misdiagnose a stroke simply because the misdiagnosis happened between March 9 and December 31, 2020? Absolutely not.
Blanket Immunity for Medical Providers During a Pandemic Excuses Them from Excellence and Quality Care
If doctors are not held to the minimum standards they’ve always been held to, how can we trust that we all will get the care we deserve?
Our legal system already thoroughly vets all medical malpractice claims. In order for a medical malpractice claim to go forward in court, medical experts must swear under oath that the error fell below the standard of care and that the negligence harmed the patient. This requirement ensures that only meritorious medical malpractice claims proceed. So why is immunity needed?
We salute the dedicated healthcare workers who care for patients and who put their lives on the line during this pandemic. But the existence of a pandemic should not be used as an excuse for falling below basic minimum standards of care.
Cooper Elliott’s Position and COVID-19 Immunity Legislation
Cooper Elliott believes that doctors and hospitals should be held accountable when they fail to meet minimum standards and their negligence hurts or kills a patient. Providing immunity to doctors and hospitals closes the courthouse door to patients who have suffered harm as a result of medical malpractice. To protect patients’ health and rights, we stand against the COVID-19 immunity legislation.
We urge you to remain current on the status of Sub. H.B. 606 by following this link to the legislation. We also highly recommend that you contact Mike DeWine, governor of Ohio, and ask him not to sign Sub. H.B. 606, should it reach his desk. He can be contacted via phone at (614) 466-3555 or through his online web form.
Should you or someone you love experience negligence during COVID-19, Cooper Elliott is prepared to answer your needs.
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The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.