On April 1, 2020, Governor Phil D. Murphy issued Executive Order 112. The broad-ranging decree was designed to provide legal protections to healthcare providers responding to the State’s COVID-19 response. Central to that intent is a “qualified immunity” to healthcare professionals. This advisory addresses specific issues that may arise with Executive Order 112’s application to future litigation.
WHAT HEALTHCARE PROVIDERS ARE COVERED BY THE IMMUNITY?
The Order applies broadly to any individual holding a license, certificate, registration or certification to practice a healthcare profession or occupation in New Jersey, including, but not limited to, any advanced practice nurse or physician assistant acting outside the scope of their ordinary practice…
Thus, the Immunity extends to all healthcare providers that have some form of certification or license by the state.
DOES THE IMMUNITY APPLY TO VICARIOUS LIABILITY CLAIMS?
The Order applies to “Healthcare Facilities” as defined in N.J.S.A. 26:13-2, which include:
“any non-federal institution, building or agency, or portion thereof whether public or private for profit or nonprofit that is used, operated or designed to provide health services, medical or dental treatment or nursing, rehabilitative, or preventive care to any person. Health care facility includes, but is not limited to: an ambulatory surgical facility, home health agency, hospice, hospital, infirmary, intermediate care facility, dialysis center, long-term care facility, medical assistance facility, mental health center, paid and volunteer emergency medical services, outpatient facility, public health center, rehabilitation facility, residential treatment facility, skilled nursing facility, and adult day care center. Health care facility also includes, but is not limited to, the following related property when used for or in connection with the foregoing: a laboratory, research facility, pharmacy, laundry facility, health personnel training and lodging facility, patient, guest and health personnel food service facility, and the portion of an office or office building used by persons engaged in health care professions or services.”
Notably, Assisted Living and Independent Senior Living are not specifically identified, which may raise interpretive litigation issues with that segment of the long-term care community. However, this omission appears to be based upon a non-exhaustive listing, rather than deliberate exclusion. AL providers are licensed by the New Jersey Department of Health. Further, the phrase “not limited to” is purposefully included to ensure as broad a scope as possible. The Order states that Healthcare Facilities are immune from the actions of their agents, officers, employees, servants, representatives or volunteers, thereby specifically articulating that the immunity is intended to apply to all claims of vicarious liability.
WHAT IS THE SCOPE OF THE IMMUNITY?
The Order provides immunity from civil liability for any damages alleged to have been sustained as a result of the individual’s acts or omissions undertaken in good faith in the course of providing healthcare services in support of the State’s COVID-19 response. Thus, the scope of the immunity depends on the interpretation and application of the terms “healthcare services in support of the State’s COVID-19 response” and “good faith.”
What qualifies as “healthcare services in support of the State’s COVID-19 response” will likely be a future point of contention in cases interpreting the scope of this immunity. Accordingly, the brief history of the Order, and the comments of Governor Murphy and his office, are important argument points in favor of an expansive view.
The initial draft of the Order limited the application of the immunity “to the extent that the practitioner’s existing liability insurance does not provide coverage or an applicable limit is exceeded.” This left a gaping hole in the immunity protections for both the provider and their insurance carrier. However, Governor Murphy issued a revised order removing this language. The Governor’s spokeswoman, Alex Altman, suggested that the language was removed to clarify that the immunity was intended to be interpreted broadly. When describing the immunity at his daily briefing, Governor Murphy stated, “My order makes clear the healthcare professionals we are calling upon to help with our state’s COVID-19 response will be immune from civil liabilities for action taken in good faith.”
There, of course, will be counter arguments. The tenor of the bill appears directed to emergency personnel, those thrust into emergency positions, and providers crossing state lines to assist in providing care. Governor Murphy’s use of the phrase “healthcare professionals we are calling upon to help with our state’s COVID-19 response” may lend support to that position.
However, a pandemic is clearly a community problem, which requires a community response. In recognition of this factor, both CMS and the CDC have issued guidance to healthcare facilities on infection control and prevention practices to prevent the transmission of COVID-19. Even these recommendations may fall short of preventing transmission, given that carriers may be asymptomatic. Arguably then, any action performed in “good faith” by a healthcare facility in response to these recommendations should be interpreted as falling under the cloak of this immunity.
The CMS/CDC recommendations are as follows:
- To be vigilant in identifying any possible infected individuals
- Consider monitoring for potential symptoms of respiratory infection, as needed, throughout the day
- Contact their local or state health department when experiencing an increased number of respiratory illness among patients/residents or healthcare personnel
- Restrict visitation of all visitors and non-essential healthcare personnel, except for certain compassionate care situations, such as an end-of-life situation
- When a visitor is permitted to enter they must: Be required to perform hand hygiene and use PPE such as facemasks, be screened for fever or respiratory symptoms, be restricted to a specific room only
- Facilities are expected to notify potential visitors to defer visitation until further notice (through signage, calls, letters, etc.)
- Facilities should review how they interact with vendors, and take necessary actions to prevent any potential transmission
- In lieu of visits, facilities should consider offering alternative means of communication for visitors, such as virtual communication
- If possible, facilities should create dedicated visiting areas (“clean rooms”) near the entrance to the facility where residents can meet with visitors in a sanitized environment. The rooms should be disinfected after every visit
- Residents still have the right to access the Ombudsman program, but the access should still follow the COVID-19 visitation guidelines
- Visitors should be advised to monitor for signs and symptoms of respiratory infection for at least 14 days, and notify the facility if symptoms occur
- Communal dining and all group activities should be cancelled
- Facilities should implement active screening of residents and staff for fever and respiratory symptoms
- Residents should be reminded to practice social distancing and perform frequent hygiene
- All staff should be screened at the beginning of their shifts for fever (actively take their temperatures) and respiratory symptoms
- A healthcare facility can accept a resident diagnosed with COVID-19 for admission as long as the facility can follow CDC guidelines for Transmission Based-precautions
- Healthcare facilities should admit any individuals that they would normally admit, including individuals from hospitals where a case of COVID-19 was/is present
- If possible, a unit/wing should be dedicated exclusively for any residents coming or returning from the hospital to serve as a step-down unit where they remain for 14 days with no symptoms
- Residents infected with COVID-19 may not require hospital transfer as long as the facility can follow infection prevention and control practices recommended by the CDC, and the resident does not require a higher level of care
- Prior to transfer of a resident infected with COVID-19, EMS personnel and the receiving facility should be alerted to the diagnosis and precautions to be taken, including placing a facemask on the resident during transfer
- A resident infected with COVID-19 may be discharged home (in consultation with state or local public health authorities) if deemed medically and socially appropriate
- Facilities should increase the availability of alcohol-based hand rubs (ABHR), tissues, no-touch receptacles for disposal, and facemasks at healthcare facility entrances, waiting rooms, resident check-ins, etc., and reinforce string hygiene practices
- Facilities should ensure ABHR is accessible in all resident-care areas, including inside and outside resident rooms
- Facilities should increase signage for vigilant infection prevention, such as hand hygiene and cough etiquette
- Facilities should properly clean, disinfect, and limit sharing of medical equipment between residents and areas of the facility
- Facilities should provide additional work supplies to avoid sharing (e.g. pens, pads), and disinfect workplace areas (nurse’s stations, phones, internal radios, etc.)
Thus, it is incumbent upon healthcare providers to follow the guidance as closely as possible, and document that compliance to support potential immunity. This should not only be limited to new interventions, but also existing policies and procedures that can be interpreted as assisting in preventing the spread of COVID-19.
WHAT ARE THE LIMITATIONS WITH QUALIFIED IMMUNITY?
The Order specifically states the immunity does not “extend to acts or omissions that constitute a crime, actual fraud, actual malice, gross negligence or willful misconduct.” This is consistent with current NJ case law that “recklessness” and actions of “gross negligence” constitute bad faith, and as such, are not protected by a qualified immunity. Thus, a review of existing immunity statutes and interpreting case law are instructive.
The New Jersey Legislature has granted qualified immunity to a wide range of persons providing medical assistance in emergency situations:
- Under N.J.S.A. 2A:62A–1 (“Good Samaritan Act”), volunteers and paid professionals that respond to a medical emergency and render treatment.
- Under N.J.S.A. 26:2K–14, mobile intensive care paramedics while in training for or in the rendering of advanced life support services.
- Under N.J.S.A. 26:2K–29, EMT-intermediates while in training for or in the rendering of intermediate life support services.
The one limiting factor is that the service must be provided in “good faith,” which has been defined as “honesty of purpose and integrity of conduct without knowledge, either actual or sufficient to demand inquiry, that the conduct is wrong.” Marley v. Borough of Palmyra, 193 N.J.Super. 271, 294, 473 A.2d 554 (Law Div.1983). The issue of whether a person acted in good faith is often a question of fact, which should be decided at a plenary hearing. Fielder v. Stonack, 141 N.J. 101, 132, 661 A.2d 231 (1995). Summary judgment, however, is appropriate when the employee demonstrates that his/her actions “were objectively reasonable or that [he] performed them with subjective good faith.” Canico v. Hurtado, 144 N.J. 361, 365, 676 A.2d 1083 (1996). This test recognizes that even a person who acted negligently is entitled to a qualified immunity, if he acted in an objectively reasonable manner. Id. at 366, 676 A.2d 1083.
In Frields v. St. Joseph’s Hospital and Medical Center, 305 N.J. Super. 244 (App. Div. 1997), Plaintiff alleged that a Mobile Intensive Care Unit (MICU) and Emergency Medical Technician (EMT) team used excessive force in restraining his son, resulting in a subarachnoid hemorrhage and death. Plaintiff proffered expert opinion stating that the defendants could have restrained sooner and with less force. The appellate division determined that this expert opinion did no more than state a case for paramedic or emergency personnel negligence. Accordingly, the defendants were immune under their respective statutes.
In Kruse v. Capital Health Systems, 2008 WL 3862015 (App. Div, 2008), an unpublished appellate opinion with no precedential authority, the MICU defendants determined that a patient did not require Advanced Life Support (ALS) services, and handed over care to a Basic Life Support (BLS) unit. Shortly thereafter, the patient died from a myocardial infarction. Plaintiff’s expert opined that the defendants violated their own protocols by failing to establish IV access, monitoring the patient and not contacting their base physician or medical command. The expert further opined that these actions were reckless, not in good faith, and not performed in an objectively reasonable manner. The Appellate Division determined that a genuine issue of fact existed, precluding summary judgment.
Using the above as guidance, we anticipate COVID-19 litigation will focus on whether violation of established infection policies (or not following CMS/CDC recommendations) have an objectively reasonable explanation.
IS EXECUTIVE ORDER 112 CONSTITUTIONAL?
The executive powers of the Governor are set forth in Article V of the New Jersey State Constitution. While Article V does not expressly reference executive orders, it does broadly require that the Governor “take care that the laws be faithfully executed.”
The New Jersey legislature has the ability to draft and pass a law that overrides any executive order. However, doing so may provoke the ire of public, whose sentiments appear to support protecting healthcare providers and encouraging their role in the COVID-19 response.
Nevertheless, we anticipate that there will be challenges to the Order as exceeding the Governor’s executive powers and encroaching upon the powers of the legislature.
If you have any questions about this order or any other legal matters, please do not hesitate to contact our New Jersey legal team: William J. Mundy (wjmundy@burnswhite.com); Ashan A. Jafry (aajafry@burnswhite.com); Brian D. Pagano (bdpagano@burnswhite.com); Laura Peltonen Gries (lkpeltonen@burnswhite.com); and Monica C. Fillmore (mcfillmore@burnswhite.com).