On March 30, 2020, Kentucky Senate Bill 150 became effective which addresses numerous issues arising from the COVID-19 state of emergency. Included in that new statute is a provision that for any health care provider who, in good faith, renders care or treatment of a COVID-19 patient during the state of emergency, those health care providers shall have a defense to civil liability for ordinary negligence for any personal injury resulting from that care or treatment or failure to provide or arrange further medical treatment.
This statutory defense specifically includes any health care provider who prescribes or dispenses medicines for off label use to attempt to combat the COVID-19 virus. It also applies to any medical worker who provides health care services, upon the request of heath care facilities or public health entities, that are outside the provider’s professional scope of practice. Also protected is the utilization of equipment or supplies outside the product’s normal use for medical practice and the provision of health care services.
To obtain this statutory defense, the health care provider would have to prove they acted as an ordinary, reasonable and prudent health care provider would have acted under the same or similar circumstances.
This statute will provide Kentucky’s health care workers an added layer of protection from any civil claims that may arise from treating COVID-19 patients. It especially helps those caregivers who may use experimental drug therapy or perhaps be outside their normal practice area, but who have been asked to help care for COVID-19 patients. It would appear the statute could also be relied upon by those providing care to COVID-19 patients in long-term care facilities.
This statute may be the first of many that state legislatures, and even the United States Congress, may enact to provide defenses, or even immunity from suit, not only for health care workers but also for businesses as they start to open their doors to the public.