Health Providers Fighting COVID-19 Should Beware Tort Risk

By Lisa Ruggiero and Aileen McTiernan
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Law360 (May 13, 2020, 5:50 PM EDT) --
Lisa Ruggiero
Lisa Ruggiero
Aileen McTiernan
Aileen McTiernan
As the COVID-19 pandemic continues to wreak havoc and cause personal and economic turmoil throughout the country, federal and state governments have reacted swiftly by issuing various executive orders and legislation in an effort to protect citizens and businesses during this unprecedented crisis.

Part of those efforts have been focused on providing certain immunities to individuals and entities considered first responders in the country's fight against COVID-19. Starting at the federal level, immunities were initially issued for volunteer health care workers, and those protections rapidly expanded to cover a broader group through emergency executive orders and subsequent legislation in various states, including New Jersey, New York, Massachusetts, Michigan, Illinois and Connecticut.

These executive orders and this legislation essentially affords civil immunity against tort liability for health care entities and workers for certain conduct, and, in some cases, criminal immunity as well. But health care entities should not be lulled into a fall sense of security as there is no absolute immunity provided to them at this time, and the scope of protection afforded is not as clear as it may seem.

Who is covered?

The language used in these new laws suggest that their primary focus is to protect first responders — doctors, nurses and related entities providing essential services in combating COVID-19 under chaotic circumstances. Some cross-reference other statutes in defining what and who qualifies as a health care entity and health care professional for purposes of these immunities.

Although some orders and legislation are more specific, many are not entirely clear. Questions exist as to whether testing laboratories and similar companies engaged in the COVID-19 response effort will be protected as they are likewise providing critical services in the battle against the virus under emergent conditions, which are the precise circumstances warranting these immunities.

When are they covered?

Immunity is not forever. These emergency immunity measures are intended to insulate health care workers and entities from liability while they provide desperately needed care under the dire circumstances created by COVID-19. Although some of these laws may suggest that immunity commences as of the date the health care crisis was declared until its conclusion, arguments will likely ensue regarding the commencement and end of immunity coverage.

Tenacious plaintiffs lawyers will maintain that there can be no immunity before any stated effective date, while defense attorneys will contend that immunity is triggered if the conduct took place in connection with the COVID-19 response effort given the legislative intent behind the immunities.

Even under a defense argument, however, determining when the crisis and corresponding response effort began, and thus who should be entitled to immunity protection, may be complicated. Across the country, the virus has left some states crippled while others have experienced comparatively manageable effects.

Meanwhile, even within states that have been ravaged by the virus, like New York and New Jersey, the statewide spread has been anything but uniform. For instance, New York reported its first COVID-19 case on March 1, in New York County. But it was not until almost a month later, on March 30, when Seneca County in upstate New York reported its first positive case.

In New Jersey, the most densely populated state in the country, it took only 17 days for all counties to report, with New Jersey's first COVID-19 reported case on March 4 in North Jersey (Bergen County) while South Jersey (Salem County) did not report its first positive case until March 21.

The staggered spread of the virus also means that those healthcare systems that were inundated with COVID-19 in early March are not the same health care systems that were inundated in late April — an intended result of extensive social distancing and other measures implemented in both states to ensure that the spread of the virus did not exceed healthcare capacity.

Yet, under the immunity protections recently enacted, health care providers in New York and New Jersey are offered the same protections (Executive Order 202.10 in New York, effective March 7, and Public Law 2020, c.18 in New Jersey, effective March 9).

Comparatively, Illinois, which consistently ranks among the top five states reporting COVID-19-positive cases, reported its first COVID-19 case on Jan. 24, but did not announce any liability protection for its health care workers until April 1, in executive order 2020-19.

Although it is far too early to speculate when this crisis will conclude, there will also certainly be arguments about when immunities actually ceased, especially as certain states have decided to lift COVID-19-related restrictions in stages. This gradual reopening of states will further convolute immunity issues.

In any case, the bookend dates for immunity protections are likely to be a hotly contested issue in courts as the inevitable onslaught of COVID-19-related litigation ensues. As regions start to see a downward trend in positive case reporting and resultant hospitalizations and as society returns to some sort of normalcy, health care entities and providers should expect immunity from liability to vanish correspondingly.

What conduct is covered?

Even with these protections in place, immunity is not absolute. Health care entities and providers are generally not immunized from gross misconduct or certain criminal conduct. In the criminal sphere, investigative and prosecutorial decisions are likely to stem from the very governmental outlets that suggested liability protection in the first place, and only the most extreme cases are likely to proceed.

Meanwhile, potential civil liability raises its own set of unknowns, which will be left to judicial interpretation. Some of the questions that lawyers and jurists across the country will face in connection with COVID-19-related litigation may include whether the care at issue was indeed provided in support of the COVID-19-response, whether the care provided to non-COVID-19 clients albeit during the crisis is actually protected, whether certain health care providers or entities qualify for immunity, and even whether the local/regional response warranted immunity.

However, the primary issue will undoubtedly be how the standard of care is measured in these exigent circumstances created by the COVID-19 pandemic. Meaning, a year or two from now, what will be considered reasonable conduct during this crisis, what will be deemed simple negligence, and beyond that, what will be seen as conduct that rose to the level of gross negligence in the middle of this historic situation?

It is difficult to predict what actionable conduct will look like. Immunity protections highlight that society presently favors healthcare action for the public good — not inaction for fear of liability. People recognize that health care workers and entities have been tasked with urgently treating patients under severe conditions with overwhelmed resources and, in some cases, a lack of sufficient personal protective equipment.

Therefore, some state governors and legislative bodies have tried to insulate health care systems and other entities involved in the COVID-19 response effort from a barrage of lawsuits. As a result, most plaintiffs will likely have a higher burden to prove that conduct during this crisis was grossly negligent or willful.

Some legislators have already resisted efforts, however, to enact broad health care immunities, and some interest groups have been vocal in opposing any immunities at all for the health care industry. Also, the public sentiment that predominately supports the health care system today may change over the next few years as the crisis abates and memories fade.

Already nursing homes have risen to center stage as news of understaffed and ill-equipped facilities have been blamed for allowing the virus to spread rapidly among residents, a group particularly vulnerable to the virus. These and other similar news stories may indeed fuel a more immediate change in public opinion related to health care immunities.

As more and more people lose loved ones to COVID-19, many will look for someone to blame. Therefore, how the health care sector will be viewed during litigation over time will largely depend on public perception and the remaining trajectory of the pandemic.

What steps can be taken now?

While executive orders and legislation immunizing providers and facilities from liability are helpful, the interpretation of these immunities will be left to the judiciary as litigants advocate competing views. Thus, providers, facilities and other health care entities involved in the response effort should be careful to ensure continued compliance with state regulations and guidelines as those standards are likely to represent a barometer by which immunity will later be tested.

Those with a history of violations or bad press will come under closer scrutiny irrespective of the exigent circumstances that may have existed, so those with past issues need to be particularly vigilant.

Despite the urgency of dedicating all resources to the crisis response and the loosening of record-keeping obligations under recent laws, health care facilities and other regulated entities would do well to continue maintaining thorough record-keeping to the extent possible without jeopardizing their COVID-19-response efforts.

In some cases, electronic and paper records may represent some of the only concrete evidence for litigation defense in the coming years. Most importantly, no health care provider, facility, entity, agency, or corporation should be complacent simply because these conditional immunities have been put in place. Best practices should be followed even under these difficult circumstances.

Entities should strive to document their attempts to obtain funding and resources from state and federal governments to demonstrate their due diligence during the crisis as well. Similarly, they should memorialize their efforts in seeking guidance from regulatory agencies, including advice and directives received, and how and when they were implemented as further evidence of the steps taken to bring about better care amid these unprecedented circumstances.

Also, as clinical and other resources become less scarce and as the cases begin to abate, entities should begin implementing practices that may not have been feasible just a few weeks ago.

In moving forward, as appropriate and feasible, those facilities providing care should consider returning their health care providers to treating at levels of care commensurate with the provider's licensure, training and experience, and they should utilize nonclinical personnel and volunteers to assist clinical providers with nonclinical tasks. In addition, providers should work to ensure patients and, where appropriate, their designees demonstrate an understanding regarding treatment, care and follow-up.

COVID-19 immunities are not absolute protections against liability. Litigation is not only inevitable, but is already proliferating. Indeed, at least one group of litigants in New York has filed a putative class action lawsuit under the Americans with Disabilities Act and the Rehabilitation Act that is premised on alleged inadequate care at one facility. Health care providers must therefore continue to be vigilant in providing the highest standard of care during this crisis in order to avoid tort and other related liability.

Lisa Ruggiero is a partner and Aileen McTiernan is an associate at Locke Lord LLP.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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