Medical Malpractice Claims Arising Out of COVID-19 :
Does the Immunity Provision Achieve its Intended Purpose ?
By : Katie R . Osborne - RBE Attorney
On February 18 , 2021 , Governor Holcomb signed Senate Bill 1 , which codified into the Indiana Code civil immunity protections for damages purportedly caused by COVID-19 . Section 7 of the law adds new chapters to the Indiana Code , including Chapter 32 , “ Immunity Related to COVID-19 ” ( hereafter the “ Immunity Provision ”), which grants civil tort immunity to certain persons 1 for damages “ arising from COVID-19 ” unless the person ’ s actions or omissions “ constitute gross negligence or willful or wanton misconduct ( including fraud and intentionally tortious acts ) as proven by clear and convincing evidence .” 2
Pursuant to its terms , the Immunity Provision supplements existing sections of the Indiana Code , including the Indiana Medical Malpractice
Act , § 34-18-1-1 et seq . ( the “ MMA ”). 3 When considered in conjunction with the MMA , the Immunity Provision bars medical malpractice claims against qualified providers , 4 including but not limited to physicians , nurses , doctors , hospitals , and nursing homes , for injuries and damages arising out of the diagnosis and treatment of COVID-19 , unless that provider ’ s actions constituted gross negligence or willful or wanton misconduct . On its face , the Immunity Provision provides broad protection for healthcare providers amidst a global pandemic . However , the Immunity Provision ’ s gross negligence and willful or wanton misconduct exception raises practical and procedural questions which will almost certainly impede or delay the realization of this protection for qualified providers . 5
18
Riley Bennett Egloff LLP - July 2021