Pa. Gives Civil Immunity To COVID-19 Health Care Providers

By Matthew Santoni
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Law360 (May 6, 2020, 8:29 PM EDT) -- Pennsylvania Democratic Gov. Tom Wolf signed an executive order Wednesday that gave health care professionals civil immunity for good faith actions taken to fight the COVID-19 pandemic.

By designating licensed, certified and authorized health care providers and emergency service providers providing coronavirus care as "agents of the commonwealth," the governor gave them immunity from civil litigation as long as their acts or omissions don't constitute crimes, gross negligence, fraud, malice or other willful misconduct.

"As the COVID-19 pandemic has required the Wolf administration to take broad action to respond to and prepare for Pennsylvanians' critical health care needs, so too has it required our health care providers to broaden their professional responsibilities and experiences like never before," Wolf said in a statement. "This executive order ... serves to protect the individuals serving on the front lines of the disaster response."

The order also extended immunity to owners who allow their property to be used free of charge for emergency response, and relaxed a slew of regulations related to licensing, staffing and telehealth services. It took effect Wednesday and will remain in effect as long as Pennsylvania is under the disaster emergency that the governor declared March 6.

Pennsylvania now joins a number of neighboring states that shield health care providers from liability so they can provide care without the fear of getting sued. New York and New Jersey both passed legislation in April; New York Democratic Gov. Andrew Cuomo issued temporary protections in an executive order March 23.

The Pennsylvania state Department of Health reported 51,845 confirmed and probable COVID-19 cases as of Wednesday afternoon and 3,106 deaths.

Prior to Wednesday's order, Wolf had issued other directives intended to make it easier for medical retirees, medical students or out-of-state practitioners to help patients in the Keystone State, but medical industry groups pressed him to do more to shield them from civil suits.

The order granted immunity to "any individual who holds a license, certificate, registration or certification or is otherwise authorized to practice a health care profession or occupation in this commonwealth, and who is engaged in emergency services activities or the provision of disaster services activities related to the commonwealth's COVID-19 disaster emergency response pursuant to my March 6, 2020 proclamation of disaster emergency."

Covered practitioners can be working at health care facilities, nursing facilities, personal care homes, assisted living facilities, alternate care sites, community-based testing sites and "noncongregate care sites."

Some of the regulations it relaxed included requirements that certain nursing home staff, in-home care providers and birthing center staff be licensed in Pennsylvania, so it would be easier for those providers to fill anticipated staffing shortages, the order said. Other regulations were loosened to allow more health care and in-home care professionals to provide care remotely.

While some of the advocates who had been pressing for the immunity welcomed the gist of the order, they thought it should have gone further to apply to the facilities themselves.

"While today's executive order issued by Governor Wolf recognizes the extraordinary efforts of individual caregivers and health care practitioners on the front lines of COVID-19, it fails to extend the same protections to long-term care providers, including nursing homes, personal care homes and assisted living communities, who are working tirelessly to protect staff and residents during this pandemic," said Zach Shamberg, president and CEO of the Pennsylvania Health Care Association, representing nursing homes, long-term care homes and similar facilities. "Moving forward, we will work with members of the General Assembly to ensure Pennsylvania's health care providers, especially those at the epicenter of this pandemic, receive the same protections already granted to providers in 13 other states across the country."

Curt Schroder, executive director of the Pennsylvania Coalition for Civil Justice Reform, also believed the order fell short of protecting the facilities themselves, or physicians not treating COVID-19 patients who are otherwise dealing with the pandemic's fallout.

"The order fails to recognize the stresses and conditions being experienced by all health care practitioners, including those not treating COVID-19 patients," Schroder said. "The order completely fails to protect health care facilities such as hospitals, nursing homes and health systems who have to deal with shortages of personal protective equipment, triage situations due to space limitations, elective procedures delayed and other realities of operating a facility during this pandemic. As such, the executive order issued by Governor Wolf is one of the weakest in the nation."

Nor did it cover companies rushing to provide medical equipment and protective gear, he said. "The order also ignores the needs of those who have retooled facilities or ramped up production of personal protective equipment. At a time when there is a worldwide shortage of this equipment needed to keep our health care workers safe, those businesses who are incurring additional risk to meet the needs for PPE should receive safe harbor for doing so."

Pennsylvania Medical Society President Lawrence John faulted the order for not including outpatient facilities.

"PAMED thanks Gov. Tom Wolf for hearing the collective voices of physicians across the state for the need to provide medical liability immunity for health care workers treating COVID-19 patients. However, we are disappointed that his executive order did not cover practitioners in outpatient offices," he said. "If it weren't for these 'frontline' physicians, emergency rooms would be inundated and overwhelmed. We don't want to create a culture of defensive medicine, where physicians in outpatient settings refer patients with COVID-19 symptoms to the emergency room for fear of being sued."

--Editing by Stephen Berg.

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