Updated: Nov 20, 2020
Hospitals and medical staffs on the front lines of the COVID-19 pandemic are dealing with unprecedented stresses that are pushing their outermost limits. Not only are there present or imminent shortages in available beds and vital equipment, unique workforce issues are beginning to crop up. On one hand, physicians and other healthcare workers of all stripes are answering the clarion call from professional organizations such as the California Medical Association to volunteer their efforts. On the other hand, some physicians and other healthcare workers are expressing reluctance, if not resistance, to being involved in treating COVID-19 cases for fear of endangering themselves or their loved ones and colleagues. Navigating the two sides of this same coin requires a robust understanding of a wide variety of laws and ethical rules.
Governor Newsom’s declaration of a State of Emergency over COVID-19 on March 4, 2020, among other things, invoked Government Code section 179.5 to open the doors to out-of-state physicians and other licensed professionals. Any out-of-state healthcare practitioner licensed and in good standing in another state is deemed to be licensed in California for the duration of the declared emergency and for purposes of preparing for, responding to, mitigating the effects of, and recovering from COVID-19. Furthermore, a health care facility that intends to use such volunteers must submit an application for authorization from the Emergency Medical Services Authority, pursuant to its Policy to Implement the Emergency Proclamation of the Governor on the Authorization of Out of State Medical Personnel. California law provides broad immunity against liability for any physician (whether licensed in California or another state), hospital, and other healthcare provider “who renders services during any state of emergency at the express or implied request of any responsible state or local official or agency.”(See Govt. Code §8659; Bus. & Prof. Code §900(e)).
Although licensure restrictions have been relaxed for out-of-state professional healthcare personnel, state, federal, and accreditation standards still apply to require that any volunteers (both licensed out-of-state and within California) must be properly credentialed and privileged before practicing in a hospital, even in response to a declared emergency. (See 22 C.C.R. §§70701 and 70703; Bus. & Prof. Code §§2282 and 2282.5; 42 C.F.R. §§482.12(a) and 482.22(a)(2); JCO Standard MS.06.01.05, MS.06.01.07). Most medical staffs have provisions for granting “disaster privileges” that would apply in this situation, as prescribed by The Joint Commission Standard EM.02.02.13.
The situation is different as to physicians and other healthcare workers who do not wish to treat COVID-19 patients. Such practitioners may be in vulnerable groups and fear contracting the disease themselves or exposing their family members. There are no regulations or statutory authorities that would permit a medical staff or hospital to force such practitioners to treat COVID-19 patients (especially if it means practicing outside of their specialty). Contractual obligations may exist, such as a call coverage contract or an exclusive department arrangement, that could compel a physician to continue performing existing duties that would encompass treatment of COVID-19 patients. Furthermore, there may be medical ethical pressures. The AMA Code of Medical Ethics, Opinion 8.3 sets out physicians’ ethical obligations in situations of epidemic, disaster, or terrorism: “Because of their commitment to care for the sick and injured, individual physicians have an obligation to provide urgent medical care during disasters . . . . even in the face of greater than usual risks to physicians’ own safety, health, or life.” Nevertheless, nothing in Opinion 8.3 requires physicians to expose their loved ones to danger, and the opinion recognizes that the physician workforce itself is not an unlimited resource. The risks of providing care to individual patients today should be evaluated against the ability to provide care in the future.