OHCA Oregon Caregiver Spring Summer 2020

The Oregon Caregiver SPRING/SUMMER 2020 www.ohca.com 22 LEGAL & REGULATORY L ong term care providers have stepped up in a major way in the face of the COVID-19 crisis. Front line caregivers and provider staff at all levels have been working around the clock since before the virus entered Oregon to protect their residents. As we all know, COVID-19 presents a unique threat to long term care residents because it generally hits seniors who have existing medical conditions much harder than other individuals. The virus is also very contagious and spreads rapidly if it enters a community. As providers face these challenges, shortages of personal protective equip- ment have impeded infection control efforts, lack of available testing to Liability in the Time of COVID-19 identify residents and staff who may be ill has promoted transmission, shifting directives from the different national and state entities have made it difficult to adhere to guidelines, and pre-existing staff shortages have been exacerbated in long term care facilities during this crisis. In the midst of this challenging time, the threat of lawsuits looms. Already, we know of many lawsuits filed across the country against long term care providers related to COVID-19 and more are expected. As providers strive to provide quality care in these unusual circumstances where much is beyond their control, the large and growing threat of lawsuits has led many states to enact immunity provisions. To date, at least 26 states have adopted laws or governor’s orders that provide long term care facilities some protection from lawsuits arising from the crisis. While existing law in Oregon limits the amount of non-economic damages that may be imposed in some circumstances, such as claims against public bodies that fall under the Tort Claim Act or for wrongful death, Oregon does not effec- tively address liability for care provided during an emergency. Existing liability protections that apply during an emer- gency include limitations on liability for individual providers acting as “good Samaritans” and the inclusion of volun- teer healthcare providers serving during an emergency and designated emergency health care centers under the Oregon Tort Claims Act damages cap. However, these liability protections do little to limit liabil- ity for care provided to residents in a long term care facility during an emergency. A broad healthcare stakeholder coalition in Oregon has presented Governor Brown with a proposed executive order limiting the liability of hospitals, long term care, and other health care providers during Oregon’s state of emergency. As of the publication date of this magazine, this proposal remains under consideration. As the state considers the liability question, the Federal government is also considering adoption of some form of liability protec- tion to address the COVID-19 crisis. Unless, and until such time as liability protections are passed, health care providers remain dangerously at risk from lawsuits arising from this historic pan- demic and could find the legal question of what standard of care applies in a pan- demic decided by courts. Gwen Dayton, J.D., is the Executive VP & General Counsel at OHCA. By Gwen Dayton, J.D., Oregon Health Care Association