Article by Andrew Hazi, Esq. and Ali Erndl, Esq.
The COVID-19 pandemic has strained Pennsylvania’s healthcare system in unprecedented ways. In response to the challenges facing providers on the front lines of the pandemic, Governor Wolf signed an Executive Order granting immunity to qualifying providers on May 6, 2020. This Executive Order remains in effect today. The federal Public Readiness and Emergency Preparedness Act (PREP Act) provides certain protections as well, and these protections are scheduled to remain in effect through the end of the federal government’s public health emergency declaration or October 1, 2024, whichever occurs first.
While Governor Wolf’s Executive Order and the PREP Act insulate many providers from professional liability in many circumstances, their protections are not absolute. As a result, healthcare providers in Pennsylvania can face (and are facing) professional liability claims during the COVID-19 pandemic. With this in mind, it is important for providers to have a clear understanding of when Governor Wolf’s Executive Order and the PREP Act apply—and to take appropriate measures to ensure that they are not unduly exposing themselves to the risk of professional liability litigation.
Pennsylvania’s Executive Order Concerning Healthcare Providers’ Professional Liability During the COVID-19 Pandemic
Governor Wolf’s May 6, 2020 Executive Order grants immunity against civil liability to healthcare practitioners who are engaged in providing medical treatment for COVID-19. It applies specifically (and exclusively) to individual providers who hold a license, certificate, or registration to practice a health care profession or occupation in Pennsylvania. It does not apply to entities or facilities that employ these individual providers. While the legislature passed a bill that would have expanded this immunity to more providers and healthcare facilities, Governor Wolf vetoed the bill.
The Executive Order applies to the provision of treatment for COVID-19 only. Thus, providers who are covered under the Order can still face liability for errors made while treating other conditions.
Healthcare Provider Immunity Under the PREP Act
Pursuant to the federal governments’ public health emergency declaration, healthcare providers who are involved in the distribution, administration, and use of “covered countermeasures” against COVID-19 are entitled to immunity under the PREP Act. Covered countermeasures include:
- NIOSH-approved respiratory protective devices
- Drugs, biological products, and devices that “limit the harm COVID-19 might otherwise cause”
- Authorized telehealth services
- COVID-19 vaccines
- Other “qualified pandemic and epidemic products”
Crucially, the protections afforded under the PREP Act are not specific to certain types of healthcare providers, nor are they necessarily specific to the treatment of COVID-19. Thus, in many cases, it will make sense for providers facing professional liability lawsuits to seek to have their lawsuits removed to federal court under the PREP Act. While these efforts have faced resistance from the courts in some cases, recent guidance from the U.S. Department of Health and Human Services arguably favors these efforts going forward.