On May 10, 2021, and largely through the advocacy of the Washington State Hospital Association (WISHA), Governor Jay Inslee signed into law Senate Bill (SB) 5271. The bill amended the statutory language setting forth the elements of a medical negligence claim in Washington, specifically to account for the unique challenges posed to healthcare providers because of the COVID-19 pandemic.
Specifically, RCW 7.70.040 was amended with the following bolded language:
Necessary elements of proof that injury resulted from failure to follow accepted standard of care—COVID-19 pandemic.
(1) The following shall be necessary elements of proof that injury resulted from the failure of the health care provider to follow the accepted standard of care:
(a) The health care provider failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he or she belongs, in the state of Washington, acting in the same or similar circumstances;
(b) Such failure was a proximate cause of the injury complained of.
(2)(a) The following shall be necessary elements of proof that injury resulted from the failure of a health care provider to follow the accepted standard of care in acting or failing to act following the proclamation of a state of emergency in all counties in the state of Washington by the governor in response to the COVID-19 pandemic on February 29, 2020, and until the state of emergency is terminated:
(i) The health care provider failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he or she belongs, in the state of Washington, acting in the same or similar circumstances, taking into account whether the act or omission:
(A) Was in good faith based upon guidance, direction, or recommendations, including in interim or preliminary form, published by the federal government, the state of Washington or departments, divisions, agencies, or agents thereof, or local governments in the state of Washington or departments, divisions, agencies, or agents thereof, in response to the COVID-19 pandemic and applicable to such health care provider; or
(B) Was due to a lack of resources including, but not limited to, available facility capacity, staff, and supplies, directly attributable to the COVID-19 pandemic;
(ii) Such failure was a proximate cause of the injury complained of.
(b) The provisions in (a) of this subsection apply only if relevant to the determination of whether the health care provider followed the standard of care, as determined by the court.
(c) If any health care provider presents evidence described in (a) of this subsection, the injured patient or the patient’s representative is permitted to present rebuttal evidence, so long as such evidence is otherwise admissible.
The Senate Bill was originally sponsored by Senators Keith Waggoner (R), Jamie Pedersen (D), and Manka Dhingra (D). Senator Waggoner spoke regarding the motivations and purposes of the amendment language:
“What it really does is it provides them [providers and facilities] limited liability in the execution of their duties so that they aren’t held liable for changes in our understanding of the disease, of COVID, and things that they did that were best practices at the beginning of the pandemic, that have changed since then. It really is going to allow them to do their job in an efficient and effective manner without risk of liability for things that they really have no control over.”
The amendment language, specifically RCW 7.70.040(2)(b), provides the courts a method for determining the standard of care during the COVID-19 pandemic. Chelene Whitaker, Senior Vice President of Government Affairs at the Washington State Hospital Association (WSHA), noted several months prior to the passage of the amendment:
“During COVID, there have been a lot of instances —since COVID first hit our state and the Governor shut down non-urgent procedures —where there have been instances of delays in care. And hospitals were kind of unsure what that meant for the standard of care that hospitals and providers are held to when they are caring for patients.”
In summary, the amended language allows the Court to determine whether the considerations in RCW 7.70.040(2)(a)(i) are relevant to the question of whether the provider met the standard of care under the facts and circumstance in a given case. These considerations include whether: (1) the provider was following in good faith the recommendations from the identified government entities; and (2) whether the care at issue was attributable at least in part to a lack of resources directly attributable to the COVID-19 pandemic.
Due to the recency of the amendment, there are no published or unpublished appellate court opinions that could provide guidance on how exactly these considerations should be made in practice. The same is true with regard to what quality and type of evidence the plaintiff may rely upon in rebutting the showing by the defendant provider, as contemplated by RCW 7.70.040(2)(c). Conceivably, the evidentiary showing necessary for both the provider and the plaintiff in rebuttal will require discovery regarding budgetary limitations and how such limitations may have affected the availability of resources and personnel, local and state guidelines and how they are applied, any potential changes in training and supervision due to such limitations, and concordant expert testimony on these issues.
 https://washingtonstatewire.com/a-bill-on-covid-liability-protections-for-health-care-providers-makes-it-through-to-senate-rules/  https://washingtonstatewire.com/what-do-lobbyists-think-are-the-top-health-priorities-this-session-in-washington/