IL Grants Civil Immunity for Healthcare Providers During the COVID-19 Pandemic

On April 1, 2020, Illinois governor J.B. Pritzker issued an executive order limiting healthcare providers’ civil liability stemming from the COVID-19 pandemic.  This executive order will, in practice, bar medical malpractice suits against medical professionals for their care for COVID-19 patients.  On its face, it also bars medical malpractice suits by other non-COVID patients, if the healthcare professionals or entities providing the care were, at the time, also providing services related to the outbreak – though we will likely see challenges to this wider application in the courts.

Scope of immunity:  The Order declares that health care facilities, professionals, and volunteers are immune from civil liability for injury or death resulting from their actions while providing care or assistance in response to the COVID-19 outbreak, during the governor’s Disaster Proclamation.  This is currently effective through April 30, 2020, though it may be subject to extension based on the progression of the pandemic.  The only exception is where the injury or death is caused by the actor’s willful misconduct.  For government or government agency actors, the exception widens to willful misconduct or gross negligence.

Who it applies to:  The Order applies to health care Volunteers, Professionals, and Facilities.  It defines these three categories as follows:

Volunteers:  actual volunteers, or as-yet unlicensed medical or nursing students. 

Professionals:  Individuals who are licensed or certified health care or EMS workers at a health care facility, or working for the Illinois Emergency Management Agency or Department of Public Health per the governor’s disaster proclamation. 

Facilities:  Health care facilities are defined very widely, as any of the following:

• Ambulatory surgical treatment centers licensed under the Ambulatory Surgical Treatment Center Act
• Anyone licensed under the Hospital Licensing Act
• Skilled and intermediate long term care facilities licensed under the Nursing Home Care Act, the ID/DD Community Care Act, or the MC/DD Act
• Facilities licensed under the Specialized Mental Health Rehabilitation Act of 2013
• Hospitals, nursing homes, ambulatory surgical treatment centers, or kidney disease treatment centers run by the State or a state agency
• Outpatient surgery centers run by an out of state medical provider
• Entities providing a “category of service” as defined by 77 Ill. Adm. Code 1100.220 (includes medical-surgical care, pediatrics, cardiac cath, open heart surgery, etc)*
• Providers of major medical equipment** used in clinical diagnosis or treatment of patients, whose project cost is in excess of the IL capital expenditure minimum***
• University of Illinois health care services
• Alternative Health Care Models under the Alternative Health Care Delivery Act, 210 ILCS 3 (includes postsurgical recovery care centers, children’s community-based health care centers, community-based residential rehabilitation centers, Alzheimer’s disease management centers, and birth centers that operate under the Act)
• Emergency Medical Services Systems governed by the Emergency Medical Services Systems Act****
• the VA
• State-operated Developmental Centers certified by the federal Centers for Medicare and Medicaid Services and licensed State-operated Mental Health Centers created pursuant to the Mental Health and Developmental Disabilities Administrative Act, 20 ILCS 1705/4;
• Licensed community-integrated living arrangements as defined by the Community-Integrated Living Arrangements Licensing and Certification Act, 210 ILCS 135/2;
• Licensed Community Mental Health Centers as defined in the Community Services Act, 405 ILCS 30
• Federally qualified health centers under the Social Security Act, 42 U.S.C. § 1396d(l)(2)(B)
• Any government-operated site providing health care services established for the purpose of responding to the COVID-19 outbreak

Requirements imposed on facilities, professionals, and volunteers:  The Order directs facilities, professionals, and volunteers to “render assistance.”  It directs facilities to cancel or postpone elective procedures, and enact measures to help during the outbreak such as increasing the number of available beds, preserving PPE, or taking necessary steps to treat COVID-19 patients.  The governor directs Professionals and Volunteers to provide services at a facility in response to the pandemic, or work for the IEMA or DPH in response to the disaster proclamation.  Immunity is provided for all of these activities.

When it applies:  From April 1, 2020 through the remainder of the duration of the Gubernatorial Disaster Proclamations, which currently extends through April 30, 2020.  The disaster proclamation may be extended, based on the progression of the pandemic; if it is, this immunity would automatically apply for the duration of the proclamation.

Basis for the order:  The Order cites provisions of the Illinois Emergency Management Agency Act, the Emergency Medical Services Systems Act, and the Good Samaritan Act, each of which limit civil liability during various types of emergency and disaster situations.  This is in addition to the federal Public Readiness and Emergency Preparedness Act (PREP Act) grants immunity from civil liability to manufacturers, distributors, state and local governments, health care professionals, among others, who are assisting in the response to COVID-19, and the Coronavirus Aid, Relief, and Economic Security Act, or the CARES Act, also contains a provision that extends civil liability protections to health care workers under state and federal law for “any harm caused by an act or omission of the professional in the provision of heath care services” during the COVID-19 outbreak.

Application:  The scope of the order is likely to be tested in the courts.  Its application to COVID-19 patients is clear on its face; for example, if a respiratory therapist at a hospital negligently decides on the wrong settings for a ventilator for a COVID-19 patient, they would be insulated for civil liability if the patient’s lungs are damaged or he dies as a result.  If the RT was engaged in willful misconduct, they could still be found liable, but that is an extremely high burden in a med mal setting.

As written, the order also applies to non-COVID-19 patients being treated by providers and facilities who are also involved in the outbreak.  For example, if a patient goes to the ER for a heart attack or a pulmonary embolism during the outbreak, and is provided negligent care, the provider and the hospital should be granted immunity simply because they are providing outbreak care to other patients. Arguably, a health care facility might also be immunized from non-medical civil suits, like a premises liability claim where a patient trips on a rug walking into the Emergency Department.  The order’s language grants immunity to a provider or entity not just for the care itself, but “at a time when” it was “engaged in” providing such care.  The Illinois Trial Lawyers Association, a group representing plaintiffs’ attorneys, has already said it interprets the order narrowly, applying only to COVID-19 patient care, not others who happen to be in the ER during the pandemic, so we can anticipate challenges to the scope in future cases.  Additional challenges to immunity may be made on a legal or constitutional basis, in a similar way that Illinois’ prior attempts to legislate medical malpractice caps have been challenged. 

Regardless, this Order will be an important defense, to the extent we see suits filed arising out of medical care during the pandemic.  As medical statutes of limitations stretch two years or more, depending on the facts of a case, we will see the implications of the governor’s order run into 2022 and beyond.  It will hopefully ease providers’ malpractice fears as they struggle to cope with these unprecedented burdens on their time, energy, and resources.  These concerns can sometimes lead to overuse of testing, detailed charting requirements, and other time consuming measures designed to address the risk of legal claims in the healthcare setting.  Immunity from these claims will allow physicians to focus on their patient- and care-centered approaches, and defer some administrative requirements for another, non-pandemic day. 

The executive order can be found in its entirety at https://www2.illinois.gov/Pages/Executive-Orders/ExecutiveOrder2020-19.aspx

Notes:

* “Category of Service” means a grouping by generic class of various types or levels of support functions, equipment, care or treatment provided to patient/residents. Examples include but are not limited to medical-surgical, pediatrics, cardiac catheterization, etc. A category of service may include subcategories or levels of care that identify a particular degree or type of care within the category of service. 77 Ill. Adm. Code 1100.220.

** “Major medical equipment” under 20 ILCS 3960/3 does not include medical equipment acquired by or on behalf of a clinical laboratory to provide clinical laboratory services if (a) the lab is independent of a physician’s office and a hospital and (b) it has been determined to meet provisions of Title XVIII, Section 1861(s)(10)-(11) of the Social Security Act, which include provisions related to the pneumococcal vaccine, the influenza vaccine, the Hepatitis B vaccine, and care by a certified registered nurse anesthetist or anesthesiologist assistant.

*** “Capital expenditure minimum” includes the value of studies, surveys, designs, plans, working drawings, specifications, and other activities essential to the acquisition of such equipment.  It is defined as $13,743,450 for hospitals, $7,768,030 for long term care facilities and $3,585,250 for all other applicants (these are annually adjusted numbers per the Illinois Health Facilities & Services Review Board).

**** This Act governs those providing EMS and licensed as an Emergency Medical Responder (EMR) (First Responder), Emergency Medical Dispatcher (EMD), Emergency Medical Technician (EMT), Emergency Medical Technician-Intermediate (EMT-I), Advanced Emergency Medical Technician (A-EMT), Paramedic (EMT-P), Emergency Communications Registered Nurse (ECRN), Pre-Hospital Registered Nurse (PHRN), Pre-Hospital Advanced Practice Registered Nurse (PHAPRN), or Pre-Hospital Physician Assistant (PHPA).