Coverage for Medical Volunteers

Given the rapidly-changing circumstances facing our Participants, including the potential utilization of medical volunteers, we thought it would be helpful to remind you that there is limited coverage for volunteers under your Trust Fund coverage agreement.

Generally, subject to the provisions of the coverage agreement and any applicable endorsements, coverage is provided for “volunteer workers” except:

• physicians and certain other professionals as described in the “Who’s Covered” section of the professional liability coverage agreement
• and those allied health, physicians or other PCF surcharged employees where the PCF surcharge has not been paid and the individual is not a covered qualified health care provider under the LMMA as describe in the Coverage Limitation – NON PCF Qualified endorsement attached to your professional liability coverage agreement.

As you consider your exposure related to medical volunteers, we also want to mention there may in some circumstances be a statutory limitation of liability applicable to health care providers including but not limited to medical volunteers. For example, La. Rev. Stat. 29:771 may potentially limit liability to gross negligence or willful misconduct during a state of public health emergency.

La. Rev. Stat. 37.1731 and/or 1731.1 may potentially provide limited liability for certain medical personnel in certain narrowly-described circumstances.

Finally, on the federal level, the “CARES Act”, at section 3215, indicates that (subject to limited exceptions) a 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 with respect to COVID-19 declared by the Secretary of HHS if:

1. The professional is providing health care services in response to such public health emergency as a volunteer; and
2. The act or omission occurs—
   1. In the course of providing health care services;
   2. In the health care professional’s capacity as a volunteer;
   3. in the course of providing health care services that–
      1. are within the scope of the license, registration, or certification of the volunteer, as defined by the State if licensure, registration, or certification; and
      2. do not exceed the scope of license, registration, or certification of a substantially similar health professional in the State in which such act or omission occurs; and
3. in a good faith belief that the individual being treated is in need of health care services.

The exceptions listed in subsection (a) do not apply if:

1. the harm was caused by an act or omission constituting willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious flagrant indifference to the rights or safety of the individual harmed by the health care professional; or
2. the health care professional rendered the health care services under the influence ( as determined pursuant to applicable State law ) of alcohol or an intoxicating drug.

The CARES Act section above provides for preemption of State law to the extent inconsistent with this section, unless such laws provide greater protection from liability.

The CARES Act limitation of liability is very broad but only for a volunteer who (by definition in the Act) “…does not receive compensation or any other thing of value in lieu of compensation…”, which compensation includes any insurance, health plan or Federal or State payment; but excludes the items used exclusively for rendering COVID-19 services and reimbursement for travel to the site and for room and board if the services re-rendered more than 75 miles from the volunteer’s principal place of residence.

Another practical and important restriction is imposed by the definition of “health care services”, being those relating to dx, prevention or treatment of COVID-19; or the assessment or care of a person related to an actual or suspected case of COVID-19.

While we are all hopeful that these statutes will provide protection for exposures related to using medical volunteers, we do urge you to continue your due diligence and follow your normal protocols.

Should you have any specific questions related to medical volunteers or any other coverage-related questions, please do not hesitate to contact Cindy Dolan at 225.202.3128 or via email cindy@lhatrustfunds.com