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By: Parisa Saleki
The Volunteer Protection Act of 1997 (Public Law 105–19) came into effect over two decades ago with a simple goal: promote volunteerism by limiting, and sometimes eliminating, a volunteer’s risk of tort liability. The recently enacted Coronavirus Aid, Relief, and Economic Security Act (CARES Act) further builds on the goal of encouraging volunteerism.
Specifically, the CARES Act limits liability of health care professional volunteers during the COVID-19 emergency response with respect to the diagnosis, prevention, or treatment of COVID-19 or the assessment or care of a person’s health-related to COVID-19. Section 4216 of the CARES Act states that a volunteer health care professional “shall not be liable under Federal or State law for any harm caused by an act or omission of the professional in the provision of health care services during the public health emergency.”
The CARES Act does not, however, eliminate liability altogether. Volunteers should be cautious of several exceptions to the new rule. For example, the limitation will not apply if a person sustained harm as a result of a volunteer’s willful act or gross negligence, reckless misconduct, or a conscious flagrant indifference to the rights or safety of the harmed individual. Further, liability will not be limited if a health care professional volunteer rendered services and caused a person harm while under the influence of alcohol or an intoxicating drug.
So, who exactly do these new rules apply to? The CARES Act defines the term “volunteer” as a health care professional who, with respect to the health care services rendered, does not receive compensation or any other thing of value in lieu of compensation, which includes a payment under any insurance policy or health plan, or under any Federal or State health benefits program.
For legal professionals handling claims under this section of the CARES Act, it is important to note that the section is not retroactive. The limitation of liability only applies to claims for harm in which the act or omission that caused harm occurred on or after the date the CARES Act was enacted. Lastly, the effect of this section comes to a halt once the COVID-19 public health emergency is declared over.
The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include COVID-19’s impact on the construction industry, employment issues arising from the virus, the real-world impact of business restrictions, and education claims. Click here to register.
FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.
You can also contact your FMG relationship partner or email the team with any questions at firstname.lastname@example.org.
**DISCLAIMER: The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19. The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement. We can only give legal advice to clients. Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG. An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest. As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you. We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such. We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**