ATLANTA (Legal Newsline) – As the nation continues to persevere through the coronavirus pandemic, more states are passing legal immunity protections for health care providers and in ones that have yet do to so, a groundswell of support for such action is building.
Georgia is among the latest state to approve emergency status designation for health care providers during pandemic, through an executive order issued on Tuesday by Gov. Brian Kemp.
“Employees, staff and contractors of health care institutions and medical facilities shall be considered auxiliary emergency management workers, pursuant to Code Section 38-3-35. This provision shall only apply to employees, staff and contractors of health care institutions and medical facilities…and where services are provided or performed during the Public Health State of Emergency,” Kemp’s order stated.
Kemp added the order would be effective for the duration of the Public Health State of Emergency.
Elsewhere, business advocates are lobbying for legal protections to be extended to all health care professional who are providing critical care operations in response to the coronavirus.
In New York, legislation was passed on April 3 to protect medical facilities and their workers from litigation, as long as they are arranging for or providing health care services pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law, have committed an act or omission in the course of treatment if their decisions are impacted by COVID-19 and are operating in good faith.
If, however, their behavior constitutes “willful or intentional criminal misconduct, gross negligence, reckless misconduct or intentional infliction of harm,” then that same qualified immunity would not apply.
Through the Lawsuit Reform Alliance of New York, a coalition of business advocates in that state sent a letter on Wednesday to Gov. Andrew Cuomo, Senate Majority Leader Andrea Stewart-Cousins and Speaker Carl E. Heastie, recommending such immunity protections be extended even farther.
Specifically, they advocate immunity for:
• Manufacturers doing their part to produce COVID-related products;
• Owners, occupants or managers of properties, such as hotels or schools, which are used in any way as part of the relief effort;
• Drivers, contractors used in any way to provide transportation or related services as part of the relief effort;
• Property owners and contractors engaged in essential construction – specifically relief from Labor Law Sections 240 and 241’s absolute liability provisions, including unique liability theories under Section 241(6);
• Pharmacies, retailers, senior care facilities, municipalities, and public authorities.
“Providing liability protections to our medical professionals, health care facilities, and to the valiant volunteers who have returned to medical service, was an important first step. Taking additional steps to shield our economy from unique liability exposures and tabling any proposals that may further negatively affect businesses will help provide some certainty in these truly uncertain times,” the letter stated.
In Pennsylvania, a civil justice reform group is calling on the legislature to enact legal immunity protections for health care providers and manufacturers working to combat the coronavirus, after criticizing trial lawyers in that state for allegedly working to bury such a measure which was to be proposed in the Pennsylvania House of Representatives.
“This is an egregious case of lawyer greed triumphing over the need to protect our health care heroes as they risk their own lives to save others,” said Curt Schroder, Executive Director of the Pennsylvania Coalition for Civil Justice Reform (PCCJR).
“Many other states have recognized that those working to defeat COVID-19 should not have to worry if decisions made, in the midst of a pandemic, will get them sued later on. Pennsylvanians deserve no less protection.”
However, Sud Patel, the leader of the state’s trial lawyers group, the Pennsylvania Association for Justice, called accusations such as Schroder’s “absurd” and said the group’s opposition to the measure came from its language and the breadth of its scope in extending immunity to both small and large-scale health care institutions. Legislators in the House of Representatives, both Republican and Democrat, concurred.
In the neighboring state of New Jersey, its legislature approved a measure providing liability protections for health care professionals and facilities during this public health emergency and state of emergency and issues temporary licenses and certifications during that same time frame.
While the New Jersey legislation’s protections are not as broad as those in Mississippi or New York, they do extend retroactively to March 9.
Liability protections in some form have now been enacted in New York, New Jersey, Connecticut, Illinois, Michigan, Maryland, Alabama, Georgia, Louisiana, Kentucky, Arizona, North Carolina and Arkansas.
Arkansas has issued two executive orders, the first limiting some liability for first responders and the second to suspend some requirements under worker’s compensation for first responders and health care workers – while North Carolina has expanded the definition of “emergency management workers” in order to provide protections under that state’s laws.
From Legal Newsline: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com