COVID-19: States Provide Immunity for Healthcare Providers During Covid-19 Pandemic

The COVID-19 pandemic has left healthcare facilities, especially skilled nursing and long-term care facilities, facing a deluge of lawsuits due to a surge in patient deaths. In an effort to preserve the health and safety of patients and staff members alike, many states have now enacted immunity laws granting healthcare providers and facilities immunity from either civil liability, criminal liability, or both, for care provided during the pandemic.

Although the protections granted by the laws vary state by state, several have been enacted to shield doctors, hospitals, and nursing homes from liability resulting from either a lack of personal protective equipment (“PPE”) resources or a lack of measures implemented by healthcare facilities. Because healthcare providers and facilities were required to take unprecedented measures to ensure the safety of their patients and staff during this crisis, many sought the assistance of state legislatures to draft laws protecting same from the very lawsuits that they are presently facing.

Under Connecticut’s Executive Order No. 7U, for example, Governor Ned Lamont provided immunity to certain healthcare professionals and facilities from lawsuits for “civil liability for any injury or death alleged to have been sustained because of the individual’s or healthcare facility’s acts or omissions undertaken in good faith while providing healthcare services in support of the State’s COVID-19 responses, including but not limited to acts or omission undertaken because of a lack of resources, attributable to the COVID-19 pandemic . . ..” This Executive Order applies to healthcare professionals who are licensed, registered, permitted, or certified anywhere in the United State to furnish healthcare services as well as retired professionals, professionals with an inactive licensed, or volunteers approved by the Commission of the Department of Health or her designee.

Analogous to Connecticut, New Jersey has enacted a bill “to ensure that there are no impediments to providing medical treatment related to the COVID-19 emergency and that all medical personnel supporting the COVID-19 responses are granted immunity.” P.L. 2020, c. 18. Medical services provided in the ordinary course of business, however, are exempt from such protection, such as orthopedic procedures, OB/GYN services, and necessary cardiology procedures. This bill was not intended to provide immunity for medical services, treatment, and procedures unrelated to the COVID-19 pandemic. The bill specifically includes, but is not limited to the following:

[A] healthcare professional shall not be liable for civil damages for injury or death alleged to have been sustained as a result of an act or omission by the healthcare professional in the course of providing medical services in support of the State’s response to the outbreak of coronavirus disease during the public health emergency and state of emergency declared by the Governor in Executive Order 103 of 2020.

AND

[A] healthcare facility or healthcare system that owns or operates more than one healthcare facility shall not be liable for civil damages for injury or death alleged to have been sustained as a result of an act or omission by one or more of its agents, officers, employees, . . . if, and to the extent, such agent, officer, employee, . . . is immune from liability pursuant [to the above].

P.L. 2020, c. 18.

Moreover, the bill provides that immunity includes any act or omission that was “undertaken in good faith” (emphasis included) by the healthcare professional, facility, or system to support efforts to care for COVID-19 patients and cease the spread of the virus. Acts or omissions that constitute “a crime, actual fraud, actual malice, gross negligence, recklessness, or willful misconduct,” are not protected under the bill. Such immunities are effective until the governor determines the state of emergency and public health emergency are no longer in effect.

Although there are a few immunity protections in place at the federal level, states have now taken the matter into their own hands to protect their front-line health are workers. New Jersey’s proposed law is just one example of the various immunity laws that are now being implemented to shield medical professionals facing potential legal liability.

Many of our provider clients have gone above and beyond during the COVID-19 crisis, often without the luxury of time for the typical deliberation afforded them in caring for their patients. If you are facing a claim of negligence related to either a COVID-19 patient or even a non-COVID-19 patient whose care was nevertheless impacted by precautions or procedural deviations due to COVID-19, we are here to help — either in defending such claims, or in providing advice and “shadow counsel” relative to your carrier-appointed lawyer in such a case.

As always, we are here to serve. Stay safe, and above all, thank you. We will get through this together; but our provider clients did the heavy lifting.

Posted in: Healthcare Litigation, Risk Management