COVID-19: Immunity from Civil Liability for Health Care Facilities and Providers June 1, 2020
In response to the unprecedented outbreak of COVID-19, on April 1, 2020, Governor J.B. Pritzker issued an executive order granting immunity from civil liability to Illinois health care providers and facilities. This immunity extends to any injury or death that occurs while providing health care services in response to the COVID-19 outbreak. (Governor Pritzker, Executive Order 2020-19, Executive Order in Response to COVID-19, Executive Order No. 17, §§ 3-6). Specifically, Health Care Facilities, Health Care Professionals, and Health Care Volunteers are “immune from civil liability for any injury or death alleged to have been caused by any act or omission”… while “engaged in the course of rendering assistance to the State by providing health care services in response to COVID-19 outbreak.” (Id.). An exception exists for conduct deemed willful or grossly negligent. (Id.).
This immunity broadly extends to “Health Care Facilities,” “Health Care Professionals,” and “Health Care Volunteers.” (Id. at § 1, 3-6). The Order defines “Health Care Facilities” to include hospitals, long term care nursing facilities, community-integrated living arrangement facilities, skilled mental health rehabilitation facilities, kidney disease treatment centers, emergency medical service providers, outpatient surgery centers, among others. (Id. at § 1). “Health Care Professionals” is defined as any licensed or certified health care or emergency services workers. (Id. at § 1). In addition, Governor Pritzker modified this immunity on April 30, 2020, to also include assisted living establishments and supportive living facilities. (Governor Pritzker, Executive Order 2020-33, Executive Order in Response to COVID-19, Executive Order No. 31, Part 1).
As the State of Illinois transitioned into Phase II of reopening the state, on May 13, 2020, Governor Pritzker created an additional immunity for hospitals and health care providers that continue to cancel or postpone elective surgeries and procedures in order to respond to the COVID-19 outbreak. Immunity is granted, specifically “from civil liability for any injury or death alleged to have been caused by any act or omission by the Hospital or Health Care Professional, which injury or death occurred at a time when a Hospital or Health Care Professional was rendering assistance to the State in response to the COVID-19 outbreak by providing health care services consistent with current guidance issued by IDPH.” (Governor Pritzker, Executive Order 2020-37, Executive Order in Response to COVID-19, Executive Order No. 35, § 3).
However, for those health care facilities and providers that choose to begin resuming the performance of elective surgeries and procedures beginning on or after May 11, 2020, immunity is also extended for “any injury or death related to the diagnoses, transmission, or treatment of COVID-19 alleged to have been caused by any act or omission by the hospital or health care professional, which injury or death occurred at a time when rendering assistance to the state in response to the COVID-19 outbreak.” (Id. at § 4). In fact, this Executive Order continues to extend civil immunity to health care facilities and professionals providing services in a health care facility to be immune for any injury or death relating to the diagnoses, transmission, or treatment of COVID-19. (Id. at § 5). Similar to the other orders, exceptions exist for “willful misconduct” for private institutions. (Id. at §§4-5). The Gubernatorial Disaster Proclamation within Illinois currently extends through June 29, 2020.
Federal immunities also exist for health care professionals in the midst of this pandemic. Pursuant to the Public Readiness and Emergency Preparedness Act (“PREP Act”), on March 10, 2020, the Secretary of Health and Human Services issued a Declaration for Medical Countermeasures Against COVID-19. (See 85 F.R. 15198 (Mar. 17, 2020)). The Declaration broadly extends immunity under federal law and state law for conduct related to the manufacture, testing, development, distribution, administration and use of medical countermeasures to COVID-19. Under this Declaration, civil immunity is afforded to health care providers who prescribe, administer, or dispense any antiviral or other drugs or vaccines for the purposes of treating or preventing the transmission of the SARS-CoV-2 virus. (Id.). Though, exceptions and limitations may apply, including for death and serious injuries caused by willful misconduct. (Id.). Further, this Declaration was recently amended to further extend immunity to covered countermeasures authorized under the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), which includes respiratory devices. (85 F.R. 21012 (April 15, 2020)). These protections extend until the final day of the emergency period of October 1, 2024, whichever occurs first. (Id.).
This area is vastly evolving, and our team is working collaboratively to stay current on these legal developments. For answers to any additional questions or further guidance relating to these and other liability protections, please contact our team members at Barker, Castro, Kuban & Steinback LLC.
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