April 30, 2020
As a reported third of the world is locked down, and practicing “social distancing” during the novel coronavirus pandemic, doctors, nurses, physician’s assistants and others are on the front lines treating those most seriously ill. In addition to ensuring that these professionals have the appropriate personal protective equipment to safely do their jobs, a number of state governments – including New Jersey’s – are now taking steps to protect these professionals from legal exposure as a result of their efforts during this unprecedented pandemic.
On Tuesday, April 14, 2020, Governor Phil Murphy of New Jersey signed into law an act that was aimed “to ensure that there are no impediments to providing medical treatment related to the COVID-19 emergency and that all medical personnel supporting the COVID-19 response are granted immunity.” The statute is not intended to extend to “medical care rendered in the ordinary course of medical practice.” The Act takes immediate effect, and is retroactive to March 9, 2020 – the beginning of New Jersey’s confrontation of the coronavirus.
New Jersey’s new law takes three significant steps. First, it provides that health care professionals will not be liable for civil damages for injury or death alleged to have been sustained due to the health care professional’s negligence in the course of providing medical services “in support of the State’s response to the outbreak of coronavirus disease during the public health emergency and state of emergency,” declared by executive order. Health care facilities and systems are also immunized for the negligence of their employees. The immunity is also expressly to include “any act or omission undertaken in good faith by a health care professional or healthcare facility or a health care system to support efforts to treat COVID-19 patients and to pre vent the spread of COVID-19 during the public health emergency … including but not limited to engaging in telemedicine or telehealth, and diagnosing or treating patients outside the normal scope of the health care professional’s license or practice.” Criminal acts, actual fraud, gross negligence, recklessness, and willful misconduct are excepted from this immunity.
The scope of what services are “in support of the State’s response” is not defined expressly b y the statute, and questions of whether medical services were “in the ordinary course of medical practice,” or are covered by this immunity, may find their way into New Jersey courtrooms shortly. Questions will also likely persist as to what specific allegations of medical malpractice of non-COVID 19 patients will be subject to the “good faith” immunity established by statute.
The second step involves immunization of health care facilities and systems in connection with their allocation of mechanical ventilators or other scarce medical resources. This immunity is contingent upon the medical facility or system adopting, and adhering to, a “scarce critical resource allocation policy,” which “incorporates the core principles identified by the Commissioner of Health in an executive directive or administrative order,” and further immunizes the health system or facility’s employees and agents pursuant to such terms.
The third item of the legislation permits the state to suspend, or temporarily modify, various professional and occupational licensing rules and regulations, “if it is determined that such order is necessary to promote the public welfare and further such other purpose for which the state of emergency and public health emergency” was declared. Any suspension or modification will cease to apply when the state of emergency ends.
MKCI will continue to monitor and advise our friends and clients of the legal developments surrounding the coronavirus pandemic. As our society moves forward, numerous legal obstacles are likely to be related, in whole or in part, to this unique challenge. MKCI stands ready to assist our friends and clients through this crisis and beyond. For more information on this topic, please feel free to contact MKCI’s Tom Emala at temala@mkcilaw.us.com.