Ohio Legislature Approves Limits on COVID-19 Liability for Healthcare Providers

September 4, 2020

Amended Substitute House Bill No. 606 which has just been approved by the state legislature and is expected to be signed by Governor DeWine will be of great interest to all healthcare providers in Ohio. If enacted, the law provides that a healthcare professional which includes a wide array of healthcare providers, including physicians and nurses, are not liable in tort for injury or death arising from the provision of healthcare services in response to a disaster including an epidemic. The new statute, however, is not the model of clarity. For example, although the definition of a “disaster” includes an epidemic, the benefits of the statute will require that the federal government, state government or political subdivision of a state had declared a “disaster”. Although the statute is clearly intended to cover the existing COVID-19 pandemic, no guidance is provided as to what will satisfy the statute as a “declaration” of a disaster.

The statute excludes protection from liability if the provision of healthcare services is found to be reckless affecting the life or health of the patient or if the healthcare provider’s misconduct is intentional, willful or wanton.

Of note, the statute also protects a healthcare provider from any professional disciplinary action provided that the healthcare provider was not grossly negligent.

The scope of protection provided to a healthcare provider is not limited to just treatment of the disease giving rise to the declared disaster but also protects the healthcare provider from any tort liability arising from the inability of the provider to provide healthcare services as a consequence of an “executive or director’s order or an order of a board of health of a city or general health district issued in relation to an epidemic or pandemic disease or other public health emergency.”

Finally, although not directly applicable to healthcare providers, the statute in separate section bars any civil action for damages for injury or death arising from the exposure, transmission or contraction of the SARS-COV-2 virus. Like Section 1 of the statute, a tort action is allowed if the exposure, transmission or contraction of the virus was the result of reckless, intentional, willful or wanton misconduct.
 

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