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States Respond to COVID-19 to Protect Healthcare Workers

By Maria Granaudo Gesty, Esquire

At least three states have responded to the COVID-19 state of emergency by enacting added protections for healthcare providers in the course of treatment of such patients, and many more are expected to follow.

KENTUCKY SENATE BILL 150
In Kentucky on March 30, 2020, Governor Beshear signed Senate Bill 150 into law to allow for quick response by the healthcare providers by protecting them from liability related to health care decisions for COVID-19 patients. During the State of Emergency, SB150 offers healthcare providers the following civil defense:

5(b) A health care provider who in good faith renders care or treatment of a COVID-19 patient during the state of emergency shall have a defense to civil liability for ordinary negligence for any personal injury resulting from said care or treatment, or from any act or failure to act in providing or arranging further medical treatment, if the health care provider acts as an ordinary, reasonable, and prudent health care provider would have acted under the same or similar circumstances. The aforesaid defense under this paragraph shall include a health care provider who:

    1. Prescribes or dispenses medicines for off-label use to attempt to combat the COVID-19 virus in accordance with the federal Right to Try Act, United States Public 26 Law 115-176, and KRS 217.5401 to 217.5408; 27
    2. Provides health care services, upon the request of health care facilities or public health entities, that are outside of the provider’s professional scope of practice; or
    3. Utilizes equipment or supplies outside of the product’s normal use for medical practice and the provision of health care services.

Kentucky SB150 does not define “health care provider” but is expected to cover individuals employed in nursing homes. Further, it appears the liability only extends to the care provided to COVID-19 patients.

ILLINOIS EXECUTIVE ORDER
Governor Pritzker of Illinois has taken a different approach. On April 1, 2020, he signed an Executive Order in response to COVID-19 pursuant to the Governor’s power under Illinois Emergency Management Agency Act (IEMA Act). After declaring the State of Illinois as disaster area, the Executive Order recognized the immunity of the State and political subdivisions of the State, except in the event of gross negligence or willful misconduct. It further recognized similar immunity for those who rendered assistance or advice at the request of the State. Accordingly, during the pendency of this disaster, which is extended through April 30, 2020 in Illinois, Health Care Facilities and Health Care Professionals are provided immunity from civil liability for “any injury or death” that occurrs in the course of “providing health care services in response to the COVID-19 outbreak,” except in the event of gross negligence or willful misconduct.

The Executive Order provides a detailed definition of “health care facilities,” which includes numerous types of facilities including hospitals and nursing homes. The Executive Order suggests that it expands past the specific care provided to COVID-19 patients by using the expansive language of services provided “in response to the COVID-19 outbreak.” See Executive Order 2020-19 for further details.

NEW YORK PUBLIC HEALTH AMENDMENT
New York is also expected to follow suit by amending its public health law to include new Article 30-D. New York provides even greater protection than both Kentucky and Illinois. This Article notes that treatment of patients during this public health emergency is a matter of vital state concern. The purpose of the Article is to protect broadly healthcare facilities and professionals from liability that may result from the treatment of individuals with COVID-19.

Similar to Illinois, the Article specifically defines “health care facility” to include hospitals, nursing homes and other facilities licensed to provide healthcare services, as well as employees of such facilities. This includes certified nurse aides and homecare service workers. The Article provides immunity from civil and criminal liability for any harm or damages allegedly sustained while providing healthcare services pursuant to the COVID-19 emergency rule.

The Article seemingly covers instances when the healthcare of an individual is impacted by the healthcare facility or professional’s decisions and activities related to the COVID-19, thus expanding beyond the healthcare acts, or omissions, specific to a COVID-19 patient. As in Kentucky and Illinois, gross negligence and similar conduct is excluded from such immunity. However, the statute provides that “acts, omissions or decisions resulting from a resource or staffing shortage shall not be considered to be a willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm.”

For more information, please contact Maria Granaudo Gesty, Esq. at [email protected].