Arizona Enacts COVID-19 Liability Protections for Health Professionals

Fennemore Client Alert

Arizona Enacts COVID-19 Liability Protections for Health Professionals

Earlier this month, Governor Ducey signed legislation giving businesses, health care providers, and others a broad shield from civil lawsuits related to COVID-19.

The COVID-19 liability shield law is retroactive to March 11, 2020, meaning that claims filed before the law’s effective date concerning an act or omission by covered persons occurring on or after March 11, 2020 are also subject to the law. The liability limitation will remain in place until the Governor terminates the COVID-19 state of emergency declaration.

The new law protects health professionals and health care institutions, along with a wide variety of businesses, providers, schools, and organizations from claims related to COVID-19 transmission.

Specifically in the healthcare system, the new liability protections apply to individual health professionals, such as physicians, nurses, pharmacists, therapists, ambulance attendants, and other health care providers, as well as persons who are being supervised by health professionals. The law also protects health care institutions, such as hospitals, surgical centers, nursing homes, residential care facilities, ambulance services, and behavioral health, nursing, and screening facilities.

Arizona’s new law does not automatically bar all claims relating to alleged COVID-19 transmission, but it significantly raises the bar for anyone wanting to sue a covered health care professional or health care institution (and other covered persons and businesses) after contracting COVID-19.

Under the new law, a health professional or health care institution that “acts in good faith” is not liable for damages in any civil action for injury or death that is alleged to be caused by the acts or omissions of the health professional or health care institution in support of the State’s response to the COVID-19 state of emergency.

The law creates a presumption that health professionals or health care institutions are presumed to have acted in good faith if they relied on and reasonably attempted to comply with applicable published guidance relating to COVID-19 that was issued by a federal or state agency. Health professionals and health care institutions may also introduce other evidence that proves they acted in good faith.

To overcome this good faith presumption, claimants must prove by clear and convincing evidence that the health professional or health care institution acted or failed to act due to gross negligence or willful misconduct. This is a much higher standard for plaintiffs than the typical preponderance of the evidence standard. Plaintiffs are now effectively required to prove that the health professional or institution acted recklessly or deliberately to cause COVID-19 transmission—rather than simply making a mistake or not acting with reasonable care.

The new COVID-19 liability protections apply to any acts or omissions that are alleged to have occurred during a person’s screening, assessment, diagnosis or treatment related to the COVID-19 pandemic.

The new law also protects health professionals and health care institutions from acts or omissions occurring in the course of providing a person with health care services unrelated to COVID-19 if the health professional’s or health care institution’s acts or omissions was in good faith support of the state’s response to the COVID-19 state of emergency, including:

• Delaying or canceling a procedure that the health professional determined in good faith was a nonurgent or elective dental, medical, or surgical procedure.
• Providing nursing care or procedures.
• Altering a person’s diagnosis or treatment in response to an order, directive or guidelines issued by the federal, Arizona, or local government.
• Acts or omissions by a health professional or health care institution because of a lack of staffing, facilities, equipment, supplies, or other resources that are attributable to the COVID-19 state of emergency that renders the health professional or institution unable to provide the level or manner of care to a person that would otherwise have been required in the absence of the state of emergency.
   

Workers’ compensation claims are excepted under the new liability shield law. Thus, employees may file workers’ compensation claims related to actual or potential exposure to COVID-19 in the workplace.

Health care providers should take note that the Good Samaritan Executive Order that was previously in effect and offered some protections for providers during COVID-19 expired as of March 31, 2021. Although the protections offered under that Order, which were fairly limited, are no longer in effect, the new COVID-19 liability shield law supplants it and provides even greater protections for health care professionals and institutions.

Covered health professionals and health care institutions should review their COVID-19 policies. Especially as requirements and guidance continue to change, it is important to ensure all policies are updated and in line with current federal and state agency recommendations and requirements, including as published by the CDC, Arizona Department of Health Services, Centers for Medicare and Medicaid Services, and other applicable agencies.

Arizona’s new COVID-19 liability shield law is more likely to protect health professionals and health care institutions if their policies are in line with current guidance by federal and state agencies and employees are trained to implement and enforce such policies. Please contact legal counsel for help creating or updating your business’ COVID-19 protection policies if needed.