United States: COVID-19 Pandemic Negligence Claims Update: Developing Legal Immunity For Health Care Professionals

I. Introduction

On March 27, 2020, the bipartisan federal Coronavirus Aid, Relief, and Economic Security ("CARES") Act was enacted with the goal of providing economic aid to families, businesses, health care providers, and state governments. While the Act received a wealth of media attention relative to its much-needed economic stimulus, little publicity was given to the immunity it grants to volunteer health care providers during the current public health crisis. Earlier in March, we discussed the impact of the COVID-19 Pandemic on Negligence Claims, noting the potential for rapid development of legal immunity in the face of uncertainty created by Coronavirus. Now, just two months into the COVID-19 pandemic, federal and state governments have begun to take action to protect their health care providers from liability, and we summarize these early efforts below.

II. Developing Legal Immunity

While the CARES Act focuses on economic stimulus and relief, it also immunizes health care professionals from liability for any professional negligence occurring during the care of a patient ill with COVID-19.¹ This immunity supersedes state tort law and is broadly worded, applying to all professionals licensed, registered, or certified under federal or state law to provide health care services and to individuals working under their supervision. However, there are limitations to the immunity, most notably: (1) it only applies to non-compensated, volunteer work, (2) it only provides immunity for health care services offered to treat patients ill with or suspected to be ill with COVID-19, and (3) it does not immunize willful or criminal misconduct. The CARES Act provides immunity from the date of its enactment (March 27, 2020) through the end of the current public health emergency as declared by Secretary of Health and Human Services.

While the CARES Act provides powerful and enduring protection for health care workers, it is unfortunately limited to volunteers, leaving most medical professionals unprotected. Meanwhile, the COVID-19 pandemic has presented dire circumstances in many hospitals and nursing homes, with medical professionals working around the clock to provide care, often with limited supplies and staffing given the dramatic and sudden increase in demand for care. The lack of immunity for compensated professionals and facilities may have a chilling effect on patient care, requiring professionals and facilities to be constantly wary of the specter of litigation.

However, some states have already begun to fill this gap, creating laws protecting non-volunteer health care providers. For example, Illinois' governor recently signed Executive Order 2020-19, providing civil immunity to all health care professionals and health care facilities.² This order takes the basic provisions of the CARES Act and expands upon them, offering similar immunity from civil liability to compensated, non-volunteer health care professionals and medical facilities such as hospitals and nursing homes. It also expands the definition of health care volunteers to specifically include non-licensed volunteers such as nursing students working under the supervision of medical professionals. The order also mandates that all health care providers and facilities follow Illinois executive mandates intended to fight the COVID-19 pandemic, including the cancellation of elective procedures and increasing the number of available beds in facilities. However, the executive order does not provide absolute immunity, limiting immunity relative to gross negligence and willful misconduct. Like the CARES Act, the period of immunity under the executive order is tied to the March 9, 2020 Illinois Gubernatorial Disaster Proclamation, remaining effective throughout the pendency of the proclamation.

Illinois is not the only state to expand immunity to health care professionals. Shortly after New York's governor issued an executive order providing health care immunity, the New York Legislature passed the Emergency Disaster Treatment Protection Act ("EDTPA") as part of its 2020-2021 budget.³ The EDTPA offers protections similar to Illinois' Executive Order 2020-19, albeit on a more expansive scale. Under the EDTPA, immunity extends to volunteer health professionals (including retired and student health professionals), compensated health professionals, health care facilities, and members of facility management, including administrators, executives, managers, and board members.

New Jersey also recently enacted legislation providing protections similar to those in the Illinois Executive Order.⁴ New Jersey's legislation further expands civil immunity protections to medical professionals practicing telemedicine and medical professionals providing care outside their typical area of specialization. This new law also provides for the Director of the Division of Consumer Affairs to temporarily suspend or modify professional certification or licensure requirements for medical professionals battling COVID-19.

Massachusetts has also enacted COVID-19 immunity legislation.⁵ Massachusetts' Act provides similar protections to the Illinois Executive Order and EDTPA but also expands immunity to home health care agencies and certain "volunteer organizations."

Michigan issued an executive order similar to that of Illinois.⁶ Michigan's executive order is structured to get medical professionals to the front line, providing civil and criminal immunity to physician assistants, pharmacists, registered nurses, and licensed practical nurses providing care within their specialty but outside of physician supervision.

Connecticut also entered an executive order providing protections similar to those seen in Illinois; however, Connecticut's order also attempts to change the standard of care, specifically immunizing conduct failing to meet the normal standard of care when the conduct was caused by a lack of resources attributable to the COVID-19 pandemic.⁷                

III. Looking to the Future

So far, the federal government and six states have taken action to protect health care workers and facilities from civil and, sometimes, criminal liability relative to COVID-19 care, but the battle for legal immunity will not end with these executive orders and legislation. Legislators and government officials are feeling tremendous pressure from organizations, including medical associations and health care workers' unions, for additional immunity protections at the federal and state levels. States like California, Washington, Texas, and Florida with heavily populated cites are already facing demands to provide immunity to health care professionals and facilities to facilitate their care of those ill with COVID-19.

However, immunity laws will not prevent all future civil litigation. Aggressive plaintiffs' counsel may not be completely deterred by immunity legislation and will likely attack the validity of these laws or find exceptions in their language. This is especially concerning for health care providers and facilities in states such as Illinois, Michigan, and Connecticut, as the validity and applicability of administrative orders are often easier to challenge than legislation. Additionally, many plaintiffs' litigators may take a more direct route and plead willful misconduct allegations to circumvent immunity, alleging that difficult triage decisions and other arguable lapses in care constitute willful violations of the standard of care. As such, medical care providers and facilities must venture to remain vigilant in providing the highest quality of care possible during this uncertain and concerning time of crisis.

Footnotes

1. Coronavirus Aid, Relief, and Economic Security Act, H.R.748, 116th Cong. § 3215 (2020).

2. Ill. Exec. Order No. 2020-19 (Apr. 1, 2020), https://www2.illinois.gov/Pages/Executive-Orders/ExecutiveOrder2020-19.aspx

3. Emergency Disaster Treatment Protection Act, S07506 (2020).

4. S.2333 / A-3910, 219^th Legis. (Apr. 9, 2020)

5. An Act to Provide Liability Protections for Health Care Workers and Facilities During the COVID-19 Pandemic, S.2640, 191^st Gen. Court (Apr. 17, 2020).

6. Mich. Exec. Order No. 2020-30 (Mar. 29, 2020), https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-523481--,00.html

7. Conn. Exec. Order No. 7U (Mar. 10, 2020), https://portal.ct.gov/-/media/Office-of-the-Governor/Executive-Orders/Lamont-Executive-Orders/Executive-Order-No-7U.pdf

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