NJ Lawmakers OK Shielding Virus Health Workers From Suits

By Bill Wichert
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Law360 (April 13, 2020, 9:03 PM EDT) -- The New Jersey Legislature on Monday overwhelmingly passed a bill that shields health care workers and facilities from civil liability over their efforts to treat COVID-19 patients and prevent the spread of a disease that has already killed more than 2,400 Garden State residents.

With the COVID-19 threat having chased them from the Statehouse, the state Senate and the Assembly voted remotely to approve S.B. 2333, which would grant civil immunity to doctors, nurses and other health care professionals, as well as medical facilities, with respect to coronavirus-related services.

The legislation sailed through the Senate and the Assembly by votes of 30-2 and 73-1, respectively, with five abstentions in the Assembly.

One of the bill's sponsors, Senate Minority Leader Tom Kean Jr., R-Union, noted Monday in a statement that many of the challenges facing the facilities and workers, "including shortages of life-saving ventilators, are not the result of negligence but of a massive surge in need and limited national supply."

"When our region has been hit as hard by the coronavirus as anywhere in the world, we must recognize that our health care facilities, doctors, and nurses are doing the best they can with what they have," Kean added. "They deserve the assurance that they will not be punished for trying to save lives under these unbelievably difficult circumstances."

The immunity would be retroactive to March 9, when Gov. Phil Murphy declared a state of emergency and public health emergency in connection with the novel coronavirus. By Monday afternoon, there were 64,584 confirmed positive COVID-19 cases in the state and 2,443 deaths, state officials said.

During the Assembly voting session, however, Assemblyman Jamel C. Holley, D-Union, expressed concerns about stripping individuals or families of the ability to pursue legal action over medical malpractice claims related to COVID-19.

Holley said, "I've got concerns with the immunity part," and later asked, "Why now?"

Addressing that question, Assemblyman Herb Conaway Jr., D-Burlington, pointed out how physicians in some areas are faced with the dilemma of having more COVID-19 patients than available ventilators.

Conaway indicated the proposed immunity is meant to "take away this liability threat when ... you're in a situation where there's simply not enough resources to treat all the people that you may wish to treat and to satisfy all the families who will naturally want everything done for their family members."

Under the legislation, a health care professional could not be held liable for "civil damages for injury or death" allegedly caused by "an act or omission" by that person "in the course of providing medical services in support of the state's response" to the coronavirus outbreak during the public health emergency and state of emergency declared by the governor. The bill would provide related immunity to health care facilities or systems.

The immunity also would apply to "any act or omission undertaken in good faith" by workers, facilities or systems for the coronavirus-related treatment, including "engaging in telemedicine or telehealth, and diagnosing or treating patients outside the normal scope of the health care professional's license or practice," the bill states.

The protection would not extend to "acts or omissions constituting a crime, actual fraud, actual malice, gross negligence, recklessness, or willful misconduct," the bill states.

Health care workers, facilities and systems also could not be held criminally or civilly liable with respect to "the allocation of mechanical ventilators or other scarce medical resources," if the facility or system follows "a scarce critical resource allocation policy that at a minimum incorporates the core principles identified by the commissioner of health," the bill states.

The bill further includes certain professional licensing provisions that would allow more emergency medical service personnel to join the state's fight against COVID-19.

Another bill sponsor, Senate President Stephen Sweeney, D-Gloucester, added in Monday's statement, "Our health care workers are real heroes who are putting their safety at risk to save lives and protect the public, but they need help and support to take on what is an unprecedented health crisis."

"This bill will increase the immediate availability of qualified medical professionals to treat Covid-19 patients and provide temporary legal protections that are directly and expressly related to the treatment of Covid-19 patients so these workers can help provide vital medical services during this health emergency," Sweeney added.

--Editing by John Campbell.

For a reprint of this article, please contact reprints@law360.com.

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