COVID-19: Immunity from Civil Liability for Health Care Facilities and Providers

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.” (Governor Pritzker, Executive Order 2020-19, Executive Order in Response to COVID-19, Executive Order No. 17, § 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 also broadly 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).

This Executive Order remains in effect in the State of Illinois through the remainder of the Gubernatorial Disaster Proclamation, which is currently through May 29, 2020. (Governor Pritzker, Executive Order 2020-33, Executive Order in Response to COVID-19, Executive Order No.31, Part 1).

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.