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By: Shaun Daugherty, Erin Lamb and Andy Treese
As doctors, nurses, respiratory therapists, and other healthcare providers have thrown themselves wholly into the challenge of fighting the coronavirus, some have asked whether they are exposed to new or additional exposure for medical negligence. Governors and state legislators across the country are working to curtail such exposure by extending limited immunity to healthcare workers responding to coronavirus.
In Georgia, Governor Kemp has issued an executive order designating employees, contractors and staff of hospitals and other healthcare facilities as “auxiliary emergency management workers” within the meaning of the Georgia Emergency Management Act. The designation brings the workers under the ambit of O.C.G.A. § 38-3-35, which affords immunity to auxiliary emergency management workers engaged in emergency management activities, when they are complying or reasonably attempting to comply with the state’s emergency management code, regulations or emergency orders issued by state under the authority code, or with locally issued ordinances or emergency orders. The immunity, although powerful, does not apply where a provider acts with “willful misconduct, gross negligence, or bad faith” and is therefore unlikely to complete preclude litigation. Previously state courts have expressed a willingness to permit discovery to determine whether an individual has acted in bad faith, while other courts are reluctant to grant summary judgment even where the standard is gross negligence.
In New Jersey, where Covid-19 prompted the state Department of Public Health to issue “last resort guidance” to hospitals to address bioethical questions about rationing ventilators, Governor Phil Murphy has signed Senate Bill 2333, granting civil and criminal immunity to not only health care professionals treating Covid-19 patients, but also extending that immunity to health care facilities and health care systems, retroactive to March 9, 2020. The Bill grants immunity to any act or omission taken in good faith by any of those people or entities, including but not limited to those engaging in telemedicine or telehealth, and in diagnosing or treating patients outside the normal scope of the professional or facility’s licensing, so long as such efforts are in support of “the State’s efforts in fighting the Covid-19 pandemic.” The bill further extends immunity to damages for injury or death “in connection with the allocation of mechanical ventilators or other scarce medical resources,” so long as the facility or system adopts and adheres to a “scarce critical resource allocation policy that at a minimum incorporates the core principles identified by the Commission of Health…” The state senate was unable to hold hearings on the bill, but attached a statement that its intent was to grant immunity to all medical personnel supporting “the Covid-19 response.” The statement specifically notes, however, that the Bill does not grant immunity to medical care rendered in the ordinary course of medical practice, including orthopedic procedures, OB/Gyn services, and necessary cardiological procedures. The New Jersey immunity does not apply to acts constituting crimes, actual fraud, actual malice, gross negligence, recklessness, or willful misconduct.
As of this writing, Alabama, Arkansas, Arizona, Connecticut, Kentucky, Illinois, New Hampshire, Vermont and Michigan have taken similar measures, whether by legislative act or executive orders. In New York, Governor Cuomo has extended limited immunity to healthcare providers by executive order, and legislative measures are pending. No legislative action has been taken in Pennsylvania, though media reports indicate that advocacy groups are asking Governor Wolf for an executive order.
Please contact Shaun Daugherty at [email protected], Erin Lamb at[email protected] or Andy Treese at [email protected] if you have specific questions about the immunities afforded to healthcare workers engaged in coronavirus response. The healthcare team at Freeman Mathis & Gary will continue to monitor the status of state and local responses to the coronavirus pandemic.
FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.
You can also contact your FMG relationship partner or email the team with any questions at [email protected].
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