April 16, 2020
By Mohamed H. Nabulsi
On April 14th, 2020, New Jersey Governor Murphy signed into law legislation that grants healthcare professionals and healthcare facilities immunity from liability arising from claims for alleging injury or death arising from acts or omissions made in connection with, or related to, the State’s efforts to combat COVID-19.
The stated purpose of the legislation, which was added as a last-minute Senate floor amendment, is to “ensure that there are no impediments to providing medical treatment related to the COVID-19 emergency” by granting immunity to “medical personnel supporting the COVID-19 response.” However, it is not intended to provide immunity for “medical care rendered in the ordinary course of medical practice” or for “medical services, treatment and procedures that are unrelated to the COVID-19 emergency.”
Be that as it may, the bill’s actual language regarding the grants of immunity appears to immunize, in certain circumstances, medical services that may, in fact, be characterized as “unrelated to the COVID-19 emergency.” Although we would hope that the courts will recognize the disconnect in the new law’s language and will resolve any doubts about the extent of these immunity protections in favor of the healthcare professional, additional legislative action may be necessary to fully protect the healthcare community, whose members will inevitably be forced to make difficult decisions regarding patient care during this unprecedented public health emergency.
The new law grants immunity in three scenarios:
1. Civil Immunity For Healthcare Professionals and Facilities Providing Medical Services to Advance The Battle Against COVID-19
First, the law provides immunity to physicians, physician assistants, nurses, and other healthcare professionals for “civil damages” for “injury or death alleged to have been sustained as a result of an act or omission” made “in the course of providing medical services in support of the State’s response to” the COVID-19 outbreak, during the period of time that the Governor’s current declaration of a public health emergency and state of emergency remains in effect, retroactive to March 9, 2020 (the “Effective Period”).
The law also provides immunity to healthcare facilities, or a health care system that owns or operates more than one healthcare facility, for “civil damages for injury or death alleged to have been sustained as a result of an act or omission” of one of the facilities’ healthcare professionals made “in the course of providing medical services in support of the State’s response to” the COVID-19 outbreak during the Effective Period “if, and to the extent” that such professional would be immune from personal liability, as noted above.
2. Civil Immunity for Acts or Omissions Undertaken In Good Faith to “Support Efforts” to Treat COVID-19 Patients and to Prevent the Spread of COVID-19
Second, the law immunizes from civil liability any act or omission “undertaken in good faith” by a healthcare professional or healthcare facility “to support efforts to treat COVID-19 patients and to prevent the spread of COVID-19” during the Effective Period. The law specifies that this grant of immunity covers “engaging in telemedicine or telehealth” and “diagnosing or treating patients outside the normal scope of the health care professional’s license or practice.”
This grant of immunity appears to conflict with the law’s stated purpose not to grant immunity for “medical care rendered in the ordinary course of medical practice” or for “medical services, treatment and procedures that are unrelated to the COVID-19 emergency.”
The analysis will be fact intensive. Consider, for example, a practice that has become commonplace during the current crisis: In order to prevent the spread of COVID-19, an internal medicine medical practice adopts a policy that it will cease to offer in-person appointments to its patients until the crisis is over and instead will only will see patients virtually. During one such appointment with a non-COVID patient, the treating provider fails to make a diagnosis that she may otherwise have made had she examined the patient in-person. The patient files a medical malpractice action alleging that it was negligent for the treating provider and the practice to refuse to see the patient in-person and to have made a diagnosis without an appropriate physical examination.
Does the immunity apply? The answer is not so clear. While the practice’s policy not to see patients in-person (and this patient in particular) may be construed as an act “undertaken in good faith” to “prevent the spread of COVID-19” (which, as explained above, is expressly granted immunity under the new law), a plaintiff’s lawyer may attempt to characterize the telemedicine visit in this hypothetical as “medical care rendered in the ordinary course of medical practice” or a “medical service . . . that [is] “unrelated to the COVID-19 emergency” (which the bill states would not be granted immunity).
The immunity grants described in (1) – (2) above do not apply to acts or omissions constituting a crime, actual fraud, actual malice, gross negligence, recklessness, or willful misconduct.
3. Criminal & Civil Immunity for Healthcare Facilities’ Acts or Omissions Alleged to Have Caused Injury or Death Due to the Allocation of Scarce Medical Resources
Third, the new law provides both criminal and civil immunity to healthcare facilities and their agents for “damages for injury or death alleged to have been sustained as a result of an act or omission . . . in connection with the allocation of mechanical ventilators or other scarce medical resources.” But such immunity will only apply if the facility “adopts and adheres to a scarce critical resource allocation policy that at a minimum incorporates the core principles identified by the Commissioner of Health in an executive director or administrative order.”
The immunization of healthcare facilities and their agents from criminal liability works to ensure that physicians and other professionals are not deterred from making certain medically appropriate decisions in the midst of a public health emergency. For example, a clinician who removes a ventilator from a patient—knowing that the patient may die if the ventilator is removed—could potentially face criminal homicide charges. Without criminal immunity, such a clinician, and others in similarly situated positions, may understandably be hesitant to engage in such conduct, and may be forced to make a decision that might otherwise be inconsistent with the public health during this crisis.
To ensure that this important grant of immunity attaches, the healthcare facilities must adopt a policy regarding the allocation of scarce critical resources that incorporates certain principles adopted by the Commissioner of Health. On April 11, 2020, the Commissioner of Health issued such an order and, in fact, published a detailed model policy for healthcare facilities confronted with the questions whether and how they should allocate scarce medical resources among patients in the event that the public health emergency creates demands for critical care resources that outstrips supply.
Any healthcare facility and professional who will regrettably be forced to make difficult decisions during these uncertain times must adopt a carefully crafted policy to ensure that they will be covered by this grant of immunity.
Will the immunity apply to licensing authorities’ administrative disciplinary actions?
The answer to this question is likely no. As a threshold matter, the new law only provides civil or criminal immunity, not administrative immunity, and, even so, the immunity applies only for “damages for injury or death.” A professional board may take action against a licensee even if the patient did not sustain injury or death. But such a board, like the N.J. State Board of Medical Examiners or the Board of Nursing, is not empowered to take disciplinary action against a licensee for a single act of negligence. Instead, the board must establish, among other things, either “repeated acts of negligence, malpractice or incompetence” or gross negligence, gross malpractice, or gross incompetence that endangered the life, health, welfare, and safety of any person, or “professional … misconduct as may be determined by the board.”
In short, healthcare professionals may still be exposed to potential disciplinary action for certain conduct in connection with medical services provided in support of the State’s effort to combat COVID-19, even if such conduct would be covered by the immunity provided under this new.
Given the high stakes, any questions that you have regarding the scope and applicability of these new grants of immunity should be directed to legal counsel. The seasoned attorneys of Mandelbaum Barrett’s healthcare department stand ready to assist you. We are only a phone call or email away.