Are Pennsylvania and New Jersey Healthcare Workers Immune from Being Sued for Medical Treatment They Provide Related to the Corona Virus?
As states grapple with implementing the most effective measures to alleviate the immediate concerns presented by the Coronavirus / COVID-19 global health emergency, many states quickly implemented measures in order to protect health care workers and health care facilities from civil and criminal liability. Earlier this year, hospitals quickly became overrun with patients, were severely understaffed, the employees were overworked, and many facilities did not have adequate PPE (Personal Protective Equipment) to ensure the safety of their healthcare providers.
Although health care professionals are trained to treat respiratory illnesses throughout their education and career, this is an unprecedented time for those workers and their employers. With the looming threat of a second wave of the corona virus approaching, some state governments have decided it necessary to protect healthcare workers who were acting in good faith to save lives during the corona crisis. New Jersey and Pennsylvania are among the states to enact such protections (Coronavirus lawsuit immunity) for their healthcare workers.
New Jersey Provisions for Coronavirus / COVID-19
In order to combat the increasing infection rates of Coronavirus / COVID-19, on April 14, 2020, Governor Phil Murphy signed Bill No. S2333. This Bill offers significant legal protections to health care workers and related health care organizations (e.g., hospitals and telehealth facilities) as well as protecting currently employed healthcare professionals, according to the Bill. Retired doctors and nurses are permitted and encouraged to return to the workplace in order to alleviate the burden on overworked doctors, nurses, and understaffed hospitals.
Contrary to popular belief, Bill No. S2333 does not grant sweeping immunity to all medical doctors and healthcare workers in New Jersey for all inpatient or outpatient procedures or any medical treatment rendered during the pendency of the COVID-19 emergency. Due to the unprecedented nature of the COVID-19 public health crisis, the Legislature intends to ensure that healthcare professionals’ main concern is treating patients to the best of their abilities, and that “all medical personnel supporting the COVID-19 response are granted immunity.” The focus of the Bill is to protect those providing medical care to COVID-19 patients. Therefore, the immunity provisions of the bill do not apply to medical treatments and procedures performed by health care professionals outside the scope of applicable COVID-19 treatments. Such treatments include OB/GYN services, orthopedic procedures, and many others.
The applicable portions of the immunity law are summarized as follows:
- Medical professionals (a term which has been defined broadly to include physicians, physician assistants, registered nurses, advance practice nurses, licensed practical nurses, EMTs, and mobile intensive care paramedics) along with health care facilities, “shall not be liable for civil damages for injury or death alleged to have been sustained as a result of an act or omission…in the course of providing medical services in support of the State’s response to the outbreak of coronavirus disease.”
- Civil immunity under the new law extends to acts or omissions “undertaken in good faith” by health care providers and facilities that would otherwise fall outside the scope of the provider’s license. However, if such act or omissions constitutes “a crime, actual fraud, actual malice, gross negligence, recklessness, or willful misconduct” the health care professional or facility will not be shielded from liability. These types of acts or omissions are beyond typical negligence and are considered direct violations of applicable standards of medical care. Additionally, health care providers and facilities engaging in telehealth or telemedicine are shielded from liability related to the treatment of COVID-19.
- Health care professionals and facilities are protected from both civil and criminal liability for injuries or death due to decisions regarding the allocation of ventilators and “other scarce medical resources” that are in high demand during a global health emergency like this. During this pandemic, health care professionals have had to prioritize scare resources and life-saving devices in order to save dying patients in ways in which the general public could not possibly imagine. Such healthcare professionals and facilities should not face civil or criminal penalties for enacting their best judgment in providing life-saving patient care. In order to be protected from such liability, the facility must adopt and adhere to a “scarce critical resource allocation policy” and may not act in an arbitrary manner. A “scarce critical resource allocation policy” is defined as a policy, protocol, or guideline for the allocation of ventilators, ICU beds, or other medical resources that may be in limited supply and high demand during a public health emergency. At a minimum, the policy must incorporate the Health Commissioner’s core principles identified in an Executive or Administrative Order.
- The immunities that are in place to protect healthcare workers, and the facilities in which they are employed, are granted until the state of emergency and public health emergency declarations in Executive Order 103 are rescinded.
Additionally, under S2333, the Commissioner of Health has the authority to enact the following: (1) issue a provisional certification to any EMT whose certification has previously expired or any paramedic whose certification expired within the past five (5) years; (2) temporarily reactivate a paramedic certification for an individual whose certification was placed on an inactive status within the past five (5) years; and (3) grant temporary reciprocity to certain paramedics.
Pennsylvania Provisions for Coronavirus / COVID-19
On May 6, 2020, Governor Tom Wolf signed an Executive Order protecting healthcare professionals acting in good faith against liability for actions taken while providing services during the Corona Virus / COVID-19 pandemic. As stated by Gov. Wolf, “[the COVID-19 pandemic] has required our health care providers to broaden their professional responsibilities and experiences like never before.” Therefore, it is necessary to implement a policy of civil and criminal liability to protect such workers acting in good faith and “serving on the front lines of the disaster response.”
The purpose of such executive action is as follows: to suspend specific regulations in order to provide a stronger network of support in order to provide additional medical care in facilities that are currently overworked and understaffed due to treatment of the coronavirus. The Executive Order is working to allow retired health care professionals to return to the workforce, extend reciprocity to out-of-state professionals coming into Pennsylvania to alleviate the lack of adequate healthcare professionals available to treat patients, employing healthcare professionals who have not previously maintained liability coverage, and allowing healthcare providers to perform medical treatments outside the ordinary scope of their license or business.
The applicable portions of the Executive Order are summarized as follows
- Civil immunity is granted to any health care professional who holds a license, certificate, registration, or certification to practice in Pennsylvania and who is either engaged in providing COVID-19 treatment or services during the public health emergency.
- Such immunity is only extended to health care professionals acting in good faith and within the appropriate standards of medical care. Immunity is not extended to acts or omissions that are considered a crime, gross negligence, fraud, malice, or other willful misconduct.
- Health care professionals working in the following health care facilities are granted immunity for providing COVID-19 treatment: nursing facilities, personal care homes, assisted living or alternate care sites, community-based testing or non-congregate care facilities being used for emergency services related to the COVID-19 emergency response. Additionally, organizations offering real estate or premises to be used for emergency services without compensation, are immunized from liability in the case of death, injury, loss, or damage to the property of any person on the premises for the purpose of providing emergency care.
- Out-of-state healthcare providers and other retired practitioners may resume providing healthcare services within the Commonwealth in order to alleviate the burden upon understaffed hospitals and facilities.
This Executive Order will be effective for the duration of the COVID-19 public health emergency.
While both the New Jersey and Pennsylvania immunity provisions have not been without criticism, the Governors in PA and NJ felt that this drastic step was necessary.
If you or someone you know has been injured during treatment for COVID-19 and you believe the actions taken by the health care provider or facility may rise to the level of gross negligence or willful misconduct, please feel free to contact us. We remain available to speak to you by telephone, or to correspond with you by email. We can be reached by telephone at our Pennsylvania office at (215) 568-1510 or at our New Jersey office at (856) 380-3999. Our receptionist continues to personally answer the firm’s main phone lines from the hours of 8:30 a.m. to 5:00 p.m.