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By: Kevin M. Ringel
In a victory for health care providers in Illinois, a state appellate court held yesterday that Governor Pritzker’s executive order issued in the early days of the COVID-19 pandemic grants immunity for ordinary negligence claims to healthcare facilities that rendered assistance to the state during the COVID-19 pandemic. James v. Geneva Nursing & Rehabilitation Center, LLC, 2023 IL App (2d) 220180.
Issued on April 1, 2020, Executive Order No. 2020-19 provides as follows:
“Pursuant to [the Illinois Emergency Management Agency Act], I direct that during the pendency of the Gubernatorial Disaster Proclamation, Health Care Facilities shall be immune from civil liability for any injury or death alleged to have been caused by an act or omission by the Health Care Facility, which injury or death occurred at a time when a Health Care Facility was engaged in the course of rendering assistance to the State by providing health care services in response to the COVID-19 outbreak, unless it is established that such injury or death was caused by willful misconduct.”
The defendant nursing home argued that as long as it took steps to address the pandemic, it was immune from negligence claims regardless of how they arose. Plaintiffs, the estates of several decedents who allegedly contracted COVID-19 and died from related respiratory complications while in the defendant nursing home’s care, argued that Executive Order No. 2020-19 exceeded the governor’s authority and is unconstitutional.
The appellate court found that, except for willful misconduct, any “private person, firm or corporation” who renders “assistance or advice at the request of the State during a disaster shall not be civilly liable for causing the death of, or injury to, any person.” James at ¶ 20. Thus, any health care provider that can show it was “rendering assistance” to the State during the disaster declaration has immunity from negligence claims. The court noted that what it means to “render assistance” to the State during the pandemic is a factual question that is best answered by a trial court after examining evidence to determine whether a given defendant qualifies for the statutory immunity granted by the executive order. James at ¶ 22.
Other states around the country have upheld similar gubernatorial executive orders. For example, in Connecticut, the state supreme court held that immunity conferred by its comparable executive order does not turn on whether the defendants’ acts or omissions were negligent, but on whether their acts or omissions had a connection to health care services provided in support of Connecticut’s COVID-19 response. See Mills v. Hartford Healthcare Corp., et al., 2023 WL 5060991. On the federal level, the Public Readiness and Emergency Preparedness Act (PREP Act) provides some liability immunity to health care providers. However, federal courts around the country have remanded COVID-19 cases involving health care facilities to state courts following the US Supreme Court’s inaction in Glenhaven Healthcare LLC v. Saldana, 143 S. Ct. 444 (2022), which sought removal of a nursing home case from California state court to federal court.
While the James case is still subject to review by the Illinois Supreme Court, the appellate court’s decision further strengthens the immunity granted in Illinois by the governor under Executive Order No. 2020-19. Defendant health care providers should continue to affirmatively raise immunity from tort liability for claims that arise from the disaster declaration period.