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Masks won’t stop the spread into law: Illinois Supreme Court rules on healthcare facilities’ COVID-19 immunity

10/23/24

By: Donald Patrick Eckler and Jessica Sterna

In the midst of the COVID-19 pandemic, Illinois Governor J.B. Pritzker made a disaster declaration that started on April 1, 2020 and expired on May 11, 2023. While the disaster declaration was in effect, Governor Pritzker issued Executive Order No. 2020-19 and the reissuance of the same, 2020-33, which directed healthcare facilities to render assistance to the State by providing healthcare services in response to the COVID-19 outbreak.  

The case arises from executors of decedents’ estates who brought separate wrongful death actions against defendant, Geneva Nursing and Rehabilitation Center, LLC alleging that defendant negligently and willfully failed to control the spread of COVID-19 in the facility leading to the deaths of the decedents. Specifically, plaintiffs argue that defendant proximately caused the death of the decedents when they allegedly failed to properly quarantine symptomatic staff members and residents and failure to implement effective procedures for maintaining the hygiene and equipment. 

Defendant argued before the circuit court that these claims should be dismissed as they are immune from such claims of ordinary negligence under Executive Order No. 2020-19 and the Nursing Home Care Act. That request was denied. However, the circuit court allowed defendant leave to file a motion to certify a question for interlocutory appeal. The circuit court certified the following question for interlocutory appeal: “Does Executive Order 2020-19 provide blanket immunity for ordinary negligence to healthcare facilities that rendered assistance to the State during the COVID-19 pandemic?”  

The appellate court determined that the circuit court incorrectly described the scope of immunity and the source of the immunity. The court modified the certified question as follows: “Does Executive Order 2020-19, which triggered the immunity provided in 20 ILCS 3305/21(c) [(West)], grant immunity for ordinary negligence claims to healthcare facilities that rendered assistance to the State during the COVID-19 pandemic?” and answered in the affirmative. 

The Illinois Supreme Court was presented with whether the above-certified question is appropriate. In their analysis, the Court parted ways with the appellate court who analyzed the language of Section 21(c) of the Act to determine the scope of immunity. Instead, the court looked to Executive Order No. 2020-19 to come to their decision. Their reasoning for departing from the appellate court’s analysis rests on the fact that Section 21(c) of the Act allowed the Governor to use immunity to issue Executive Order No. 2020-19. The Illinois Supreme Court construed the language of Executive Order No. 2020-19 to determine whether it grants immunity for ordinary negligence claims to healthcare facilities that rendered assistance during the pandemic.  

Turning to the language of the executive order, the Illinois Supreme Court found that the language does not state that the healthcare facility is immune only from COVID-19 related ordinary negligence. Rather, the language states that a healthcare facility is immune from ordinary negligence if the negligence “occurred at a time” the healthcare facility was “rendering assistance.” The Illinois Supreme Court found that nothing about this language is ambiguous and that it is clear that the Governor chose to limit immunity to ordinary negligence claims where the language excluded willful conduct. The court remanded the matter back to the circuit court to determine application of the immunity. 

This is an important ruling for Illinois healthcare providers because it confirms that the immunity against claims for ordinary negligence granted by Executive Order No. 2020-19 and 20 ILCS 3306/21c is to be broadly construed per the plain language of those provisions. Claims for ordinary negligence against healthcare providers arising during the time frame of EO No. 2020-19 (April 1, 2020 to May 11, 2023) will be subject to dismissal upon a showing that the provider was “engaged in the course of rendering assistance to the State by providing health care services in response to the COVID-19 outbreak.” Any healthcare provider facing such claims should be prepared to demonstrate the manner in which it rendered assistance to the State during the COVID-19 emergency such as through increased staffing, education to staff and/or patients, provision of PPE, or otherwise.

For more information, please contact Donald Patrick Eckler at patrick.eckler@fmglaw.com or your local FMG attorney.