In an attempt “to enhance the protections for health care providers,” Pennsylvania Governor Tom Wolf signed an Executive Order on May 6, 2020 that granted immunity from medical malpractice liability to certain healthcare providers due to the extenuating circumstances that have resulted from the COVID-19 pandemic. The Order will be in effect for the duration of Pennsylvania’s emergency proclamation.
According to the Order, individual physicians and other healthcare employees are designated “agents of the Commonwealth solely and exclusively for purposes of immunity from civil liability.” Governor Wolf’s Order specifically states that the individuals immune from civil liability must have been providing “emergency services activities or disaster services activities only as related to the Commonwealth’s COVID-19 disaster emergency response…”
Further, the hospital or other covered healthcare provider where the individual is providing services must also be engaged in “emergency services” or “disaster services” related to the “Commonwealth’s COVID-19 disaster emergency response pursuant to [Governor Wolf’s] March 6, 2020 Proclamation of Disaster Emergency.” The Order states, “this grant of immunity shall not extend to health care professionals rendering non-COVID-19 medical and health treatment or services to individuals.” Physicians rendering treatment unrelated to COVID-19 services cannot assert the immunity afforded by the Order.
Governor Wolf’s Executive Order offers immunity to individual health care professionals, but the Order does not ensure immunity to health care facilities, such as hospitals and nursing homes. According to the Order, “individual” providers rather than “the facilities or entities themselves” are provided immunity. The Order covers doctors, nurses, hospital technicians, nursing home employees, and other individual healthcare employees who have been involved in providing treatment to COVID-19 patients.
Governor Wolf’s Order granting immunity to individual healthcare employees covers only negligent and careless conduct. Healthcare providers are not immune from claims for willful misconduct or gross negligence. Therefore, individual healthcare employees that otherwise would be immune according to the Executive Order will be held liable for any conduct that goes beyond what is considered simple negligence. Willful misconduct encompasses assault or sexual assault, and gross negligence is negligence that goes well beyond simple carelessness.
Governor Wolf’s Order is not unique, as Senate majority leader, Mitch McConnell, has announced his intention to draft legislation to protect the nursing home industry from civil liability despite nursing home residents and employees representing one-third of the coronavirus deaths in the United States. As of now, at least 15 states have enacted similar laws or orders that provide nursing home and long-term care facilities with some type of protection or immunity from civil lawsuits arising from the COVID-19 pandemic.
In a New York Times Opinion piece, Philadelphia attorney and president-elect of the American Association for Justice, Tobias L. Millrood, bravely discusses his mother’s death caused by COVID-19 and the impact that orders, such as the one Governor Wolf signed on May 6, can have on individuals impacted by this pandemic. Millrood explains why immunity orders are not the answer to the rising amount of deaths caused by COVID-19. As he states, “evidence continues to mount that many nursing homes put profits for their private equity investors above protecting their patients,” and “families deserve the right and opportunity to make the decision” to hold them accountable.
Governor Wolf’s Executive Order has raised many questions and sparked much discussion. Though the Executive Order grants “immunity” to healthcare providers, there are areas where patients who have been injured by the negligence of providers who were not addressing concerns caused by COVID-19 may have recourse. If you have any questions or concerns regarding this Order and the rights of patients during these difficult times, Harry S. Cohen & Associates can deliver the answers you need. Call for a free consultation at 412-281-3000 or 1-888-MEDMAL1 or visit our website at www.medmal1.com.