Apr 15, 2020

Health Care Professionals and Facilities MUST Take Note: New Legislation Offers Immunity But Only for Acts or Omissions Related to the Response to the COVID-19 Pandemic

By Thomas N. Gamarello, Esq.

On Tuesday night, Governor Murphy signed S-2333/A-3910 into law – a bill which provides immunity to health care professionals and facilities from claims of injuries or death related to the COVID-19 pandemic. The legislation is analogous to legislation passed in other states and furthers New Jersey’s emergent efforts to combat the coronavirus. This immunity, however, is not blanket immunity, and health care professionals and facilities must take note of this critical distinction.

The bill focuses on the provision of medical treatment and care related specifically to the COVID-19 public health emergency. The bill generally grants immunity to all medical personnel supporting the response to the pandemic. The legislation states that health care professionals will not be liable for civil damages for injury or death alleged to have been sustained as a result of an act or omission by the health care professional in the course of providing medical services in support of the State’s response to the COVID-19 pandemic. Included in the definition of “health care professionals” are physicians, physician assistants, nurses, EMTs, paramedics, radiologic technicians and other regulated health care professionals. However, health care professionals rendering care in the so-called ordinary course of medical practice, such as orthopedic and cardiovascular procedures, will not be granted immunity, notwithstanding that such care is rendered during the COVID-19 pandemic. In other words, the immunity is contingent upon the type of care that is rendered rather than the timing of the rendered care. To remove any doubt, the bill itself states “[i]t is not the Legislature’s intent to grant immunity for medical services, treatment and procedures that are unrelated to the COVID-19 emergency.” 

Health care facilities and health care systems that own or operate more than one health care facility are also immunized under the legislation for civil damages resulting in injury or death alleged to have been sustained as a result of an act or omission by one or more of its agents, officers, employees, servants, representatives or volunteers, etc., if such person is a health care professional granted immunity as discussed in the preceding paragraph. Covered under the definition of “health care facility” is the traditional definition of the term, as well as the pop-up modular field treatment facilities and other sites the Commissioner of Health designates for temporary use during the COVID-19 pandemic.

The bill also affords immunity to health care professionals, facilities and systems for any act or omission undertaken in good faith to support efforts to treat COVID-19 patients and to prevent the spread of COVID-19 during the current pandemic. This includes all those engaging in telemedicine or telehealth. Importantly, this also includes those “diagnosing or treating patients outside the normal scope of the health care professional’s license or practice.”  The immunity is retroactive to March 9, 2020 and does not extend to acts or omissions constituting a crime, actual fraud, actual malice, gross negligence, recklessness or willful misconduct.

Health care facilities and health care systems (that again own or operate more than one health care facility) are further immunized for damages from injury or death alleged to have been sustained as a result of an act or omission during the response to the COVID-19 pandemic in connection with the allocation of mechanical ventilators or other scarce medical resources, if the facility or system adopts and adheres to a “scarce critical resource allocation policy.”  Such a “policy” is a policy, protocol or guidelines for the allocation of ventilators, ICU beds, or other medical resources that may be in limited supply and high demand during a public health emergency.   In order to qualify for the immunity, the “scarce critical resource allocation policy” must, at a minimum, incorporate the core principles the Commissioner of Health identified in executive or administrative orders. 

The legislation also provides for the issuance of certain temporary licenses and certifications during the current pandemic. The Director of the Division of Consumer Affairs may issue any administrative order to modify or suspend temporarily any licensing or certification requirements for certain professionals the Director determines (with the consent of the Attorney General) is necessary to promote the public welfare during the COVID-19 pandemic. Such orders will automatically terminate upon the expiration of the state of emergency. 

During the duration of the current pandemic, the Commissioner of Health is authorized to issue provisional certifications to EMTs and paramedics with expired certifications under certain circumstances. The EMTs and paramedics must apply for this certification, which may include such, information attestations and/or a demonstration of proficiency as the Commissioner may require. Paramedics, however, are only entitled to this provisional certification if their professional certification expired within the last five years. The Commissioner may also temporarily reactivate that certification of any paramedics whose certification is currently on inactive status. Both provisional certifications for EMTs and paramedics are valid for six months from the date of issuance, unless otherwise determined by the Commissioner. Finally, the legislation grants temporary reciprocity to any paramedic who is either provisionally certified as a paramedic by the National Registry of Emergency Medical Technicians or in another state, provided that the paramedic has not had a paramedic certification revoked or suspended.  The Commissioner also has the discretion to waive any fees or other requirements, such as continuing education or required proficiency demonstrations.

DISCLAIMER: This Alert is designed to keep you aware of recent developments in the law.  It is not intended to be legal advice, which can only be given after the attorney understands the facts of a particular matter and the goals of the client.

 

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