COVID-19 and A New Standard of Care

In a previous post, we explained how Kentucky Senate Bill 150 (“SB 150”) attempts to bring economic relief and public health improvements to the Commonwealth. It has been almost one month since SB 150 was officially signed into law, and we have witnessed the beneficial effects that it continues to have across our State. The following provision of the bill, however, is likely to become a contentious issue for many patients and their health care providers over the coming weeks, months, and even years:

“A health care provider who in good faith renders care or treatment of a COVID-19 patient during the state of emergency shall have a defense to civil liability for ordinary negligence for any personal injury resulting from said care or treatment, or from any act or failure to act in providing or arranging further medical treatment, if the health care provider acts as an ordinary, reasonable, and prudent health care provider would have acted under the same or similar circumstances. The aforesaid defense under this paragraph shall include a health care provider who:

1. Prescribes or dispenses medicines for off-label use to attempt to combat the COVID-19 virus, in accordance with the federal Right to Try Act, United States Public Law 115-176, and KRS 217.5401 to 217.5408;

2. Provides health care services, upon the request of health care facilities or public health entities, that are outside of the provider’s professional scope of practice; or

3. Utilizes equipment or supplies outside of the product’s normal use for medical practice and the provision of health care services.”

Kentucky is not alone in trying to add an extra layer of protection for its health care providers. Other states, such as Illinois and New York, have also taken additional steps to provide a formidable defense to the increase in civil liability suits that are expected to take place against health care providers because of COVID-19.

Several health care providers and medical experts are currently reporting that patients are suffering from non-COVID-19 related health issues because of the added anxiety and precautions that many are taking to avoid medical treatment. In other words, COVID-19 is not just a deadly disease in and of itself, but it has also created a situation where people are afraid or unable to seek medical treatment for other serious health problems. Given the limitations surrounding in-person health care, telehealth visits, telephone calls, and other virtual health care processes are bound to open the door to a host of potential legal issues.

Whether you are a patient or a health care provider, understanding the “COVID-19 standard of care” will be important as our society attempts to navigate and make sense of the “new normal.”