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Law360 (April 17, 2020, 11:07 PM EDT) -- Since the COVID-19 outbreak exploded in the U.S. last month, state governors and lawmakers have been moving quickly to enact emergency executive orders and legislation shielding health care providers from civil liability given the shortage of ventilators and front-line medical professionals in the hardest-hit areas.
While the CARES Act, the $2 trillion stimulus package the president signed into law last month, protects volunteer health care workers from liability in the absence of reckless conduct or gross negligence, state lawmakers have taken further steps to immunize health care providers so they can give much-needed treatment without the fear of getting sued.
"If a provider is saying, 'I can't provide care because I'm afraid of being sued,' that's a problem," said Delphine O'Rourke, a Duane Morris LLP partner specializing in health care regulatory matters.
O'Rourke said lawmakers such as those in hard-hit New Jersey have moved quickly to draft and pass legislation because of the challenging circumstances health care providers face, including the lack of life-saving ventilators and other medical equipment and supplies.
"Physicians are very concerned that the shortage and the need to have ventilator triage policies," where a doctor has to make a judgment call on which patients get a ventilator, "are creating significant increased risk of exposure to litigation," she said.
Here, Law360 provides a compilation of what some states have done to protect health care providers from liability. Not all states with immunity laws or executive orders are included.
The Empire State on April 2 passed the Emergency Disaster Treatment Protection Act, which grants broad immunity to hospitals, nursing homes, physicians and nurses and other health care providers.
The bill not only immunizes health care providers for the treatment of coronavirus patients but provides a legal haven for any medical care given by a provider impacted by the COVID-19 outbreak. New York has suffered the most deaths in the U.S., with more than 12,100 as of Friday, according to the state's health department website.
The new law doesn't bar claims for willful, reckless or criminal misconduct or gross negligence but makes clear that any bad decisions stemming from staffing shortages or a lack of resources can't be considered to be in that category. The law will remain in effect for the duration of the state's public health crisis.
The law was passed as part of New York's budget bill and followed an executive order Gov. Andrew Cuomo issued March 23, which granted temporary immunity to health care providers working in support of the state's COVID-19 efforts, including retired and out-of-state health care professionals.
Gov. Phil Murphy on April 14 signed legislation that guards health care professionals and facilities from civil and criminal liability in connection with their treatment of COVID-19 patients.
Under the new law, which is retroactive to March 9, medical workers can't be held liable for patient injuries or deaths that were sustained due to their actions or inactions in support of the state's coronavirus public health emergency. The virus had killed more than 3,800 people in the Garden State as of Friday, according to state figures.
State lawmakers voted remotely April 13 to overwhelmingly approve S.B. 2333. One of the bill's sponsors, Senate Minority Leader Tom Kean Jr., R-Union, said 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 law also immunizes health care providers for good-faith treatment provided via telehealth, as well as treatment rendered outside of a physician's specialty. It also provides temporary certification of emergency medical technicians with expired licenses or active paramedics from out of state.
Gov. Gretchen Whitmer issued an executive order March 29 easing regulations for certain health care professionals in order to get them on the front lines more quickly and reinforced a state disaster relief law, which gives broad immunity to health care providers during emergencies.
Executive Order 2020-30 states that under the authority of Michigan's Emergency Management Act, health care professionals and facilities working in support of the state's COVID-19 response will not be held liable for a person's injuries or death, "regardless of how or under what circumstances or by what cause those injuries are sustained." Cases of gross negligence are not covered, according to the order.
"Michigan's dedicated health care professionals continue putting their lives on the line every day during this unprecedented crisis, and we must do everything we can to empower them to do their jobs," Whitmer said in a statement.
Michigan had as of Friday the third most coronavirus-related deaths in the nation, with 2,227, according to state statistics.
Gov. Charlie Baker is widely expected to approve a bill he himself introduced that would grant broad legal immunity to the state's doctors, nurses and hospitals as they battle the COVID-19 pandemic.
Baker announced April 8 that the proposed legislation would protect health care professionals, including physicians, nurses and emergency medical technicians, from civil liability "when the care that they provide is impacted by the COVID-19 emergency." The bill also provides liability protection for certain health care facilities such as nursing homes, assisted living facilities and community health centers.
The state legislature voted April 17 to approve the bill and sent it to Baker for his signature, according to legislative records.
Massachusetts had as of Friday the nation's fourth most coronavirus-related deaths, at 1,404, according to state figures.
Gov. J.B. Pritzker issued an executive order April 1 granting civil liability immunity to health care providers providing medical treatment in support of the COVID-19 outbreak, absent gross negligence or willful misconduct.
Executive Order 2020-19 covers a health care professional's or facility's decision to cancel or postpone elective surgeries and non-emergent procedures. In addition to hospitals, medical facilities protected under the order include nursing homes, surgery and dialysis centers and government-funded health clinics. More than 1,100 people in Illinois had died due to coronavirus as of Friday, according to state statistics.
Like New York, the new Illinois law protects health care providers even if they are not treating coronavirus patients, so long as a patient's injury or death occurred when a provider was "engaged in the course of rendering assistance to the state by providing health care services in response to the COVID-19 outbreak."
In addition, the order shields health care facilities from liability in connection with decisions they made to preserve personal protective equipment.
In late March, a Chicago nurse filed a lawsuit against Northwestern Memorial Hospital claiming she was fired for warning colleagues that the surgical masks the hospital provided nurses were inadequate to protect against the virus, as opposed to the more effective N95 masks. On April 2, a hospital security guard in suburban Chicago filed suit claiming he was constructively fired from his job for wearing a mask while working.
On March 10, Gov. Ned Lamont issued an emergency order granting immunity to health care providers and facilities providing good-faith medical services in support of the state's COVID-19 response.
The order covers any actions related to a lack of resources attributable to the pandemic and effectively relaxes the standard of care in situations impacted by the outbreak. Not covered are acts of "crime, fraud, gross negligence and willful misconduct," according to the order.
Health care professionals who are licensed in any U.S. state are covered under the order, as are any retired medical workers with inactive licenses who are authorized by the state health department to provide care, according to the order. In addition to hospitals, health clinics, nursing homes and field hospitals are also shielded by the emergency order during the duration of Connecticut's health care emergency.
The state had tallied 971 COVID-19 deaths as of Thursday, according to state figures.
Health care industry lobbying groups are urging Gov. Tom Wolf to issue an executive order granting immunity to health care providers impacted by the coronavirus pandemic after efforts to get a related law on the books fizzled in the state legislature without a vote. The state's COVID-19 death toll stood at 756 as of Friday, according to state figures.
The Pennsylvania Health Care Association sent a letter April 8 to Wolf asking him to follow the leads of New York and New Jersey to issue an order protecting health care providers.
"Staff are putting themselves at risk every single day. They should not have to worry about the threat of lawsuits as they care for their residents," the group said in the letter.
Meanwhile, the Pennsylvania Medical Society is asking its 16,000 physician members to contact the governor on the issue.
"Good Samaritan laws currently provide legal protections for doctors, nurses, and physicians assistants who help those injured in a roadside accident, hurricane, or other medical emergency," the group said in a statement. "The same theory should apply to medical professionals during the COVID-19 pandemic."
Earlier this month, the Pennsylvania House of Representatives rejected a bill that would have conferred immunity to health care providers and manufacturers who retool factories to make products such as personal protective equipment and medical equipment, according to news reports. The bill was not put to a floor vote after lawmakers on both sides of the aisle expressed concerns that it was too broad, news reports said.
As in Pennsylvania, advocates for the Sunshine State's health care industry are asking Gov. Ron DeSantis to issue an executive order to provide legal cover for health care providers in a state with a high number of nursing home patients. Florida has reported 686 coronavirus deaths as of Friday.
The Florida Health Care Association, a group representing a majority of the state's nearly 700 nursing homes, sent a letter to the governor earlier this month requesting civil and criminal immunity for any health care treatment impacted by the pandemic in the absence of gross negligence or recklessness.
"We believe it is imperative that health care facilities and health care professionals are protected from liability that may result from treating individuals with COVID-19 under the conditions associated with this public health emergency," the group said in the April 3 letter.
--Editing by Breda Lund and Brian Baresch.
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