HARRISBURG – Following the example of more than a dozen other states, Pennsylvania Gov. Tom Wolf signed an executive order on Wednesday granting civil immunity from liability to health care providers taking good faith actions in responding to the coronavirus pandemic.
Wolf explained the order was written “in response to stakeholders requesting civil immunity for health care practitioners practicing with good judgment under very challenging circumstances during the COVID-19 pandemic” and is “also in line with actions neighboring states have taken and is responsive to the needs and requests of the health care community.”
This order took effect immediately and shall remain in effect for the duration of the disaster emergency.
“As the COVID-19 pandemic has required the Wolf Administration to take broad action to respond to and prepare for Pennsylvanians’ critical health care needs, so too has it required our health care providers to broaden their professional responsibilities and experiences like never before. This executive order to enhance protections for health care professionals serves to protect the individuals serving on the front lines of the disaster response,” Wolf said.
The executive order:
-Grants immunity to any individual who holds a license, certificate, registration or certification to practice a health care profession or occupation in Pennsylvania and who is engaged in providing COVID-19 medical and health treatment or services during the COVID-19 disaster emergency response. Immunity does not extend to acts or omissions that constitute a crime, gross negligence, or fraud, malice, or other willful misconduct;
-Extends immunity to those medical professionals in Pennsylvania that provide services in any health care facility as defined by the Health Care Facilities Act, as well as any nursing facility, personal care home, assisted living facility or any alternate care site, community-based testing site or non-congregate care facility used for the purpose of conducting emergency services activities or the provision of disaster services activities related to the Commonwealth’s COVID-19 disaster emergency response;
-Affirms immunity for any person, organization or authority allowing real estate or other premises used for emergency services without compensation in the case of death, injury, or loss or damage to the property of any person who is on the premises for the purpose of those emergency services; and
-Suspends or removes a host of regulatory barriers that would otherwise impede or prevent out-of-state, retired or other qualified practitioners from providing services where needed in the Commonwealth.
“As the COVID-19 pandemic has required the Wolf Administration to take broad action to respond to and prepare for Pennsylvanians’ critical health care needs, so too has it required our health care providers to broaden their professional responsibilities and experiences like never before. This executive order to enhance protections for health care professionals serves to protect the individuals serving on the front lines of the disaster response,” Wolf said.
The Pennsylvania Health Care Association and LeadingAge PA, among other groups that represent health care providers and workers, had recently sent a letter to Gov. Tom Wolf requesting he “stand up for providers and workers, as governors in our neighboring states, including New York, New Jersey, and Connecticut have already done, and issue an executive order providing civil immunity to health care professionals.”
The Pennsylvania Medical Society also recently authored a similar missive.
Liability protections for health care providers and workers are on the discussion table in a number of states, and in some form had already been enacted in New York, New Jersey, Connecticut, Illinois, Michigan, Maryland, Alabama, Georgia, Louisiana, Mississippi, Kentucky, Arizona, Arkansas and North Carolina.
Curt Schroder, executive director for the Pennsylvania Coalition for Civil Justice Reform (PCCJR), said while the order providing protection from liability for health care professionals depending on where they are treating was “badly-needed”, it also “fails to recognize the stresses and conditions being experienced by all health care practitioners, including those not treating COVID-19 patients and those treating COVID-19 patients on an outpatient basis.”
“The order completely fails to protect health care facilities such as hospitals, nursing homes, and health systems who have to deal with shortages of Personal Protective Equipment, triage situations due to space limitations, elective procedures delayed, and other realities of operating a facility during this pandemic. As such, the executive order issued by Governor Wolf is one of the weakest in the nation,” Schroder stated.
Notably, the exception made in the order for immunity not extending to alleged actions constituting gross negligence may quell calls from trial lawyers who said previously such immunity orders will shut people out of the courts.
“This order will do little to protect health care from the plaintiffs’ attorneys lying in wait to file potentially devastating claims. It does however, protect the earning potential of plaintiffs’ attorneys hoping to cash in on the pandemic. Any assertion that we are ‘safer’ because there are attorneys waiting to sue health care facilities is a specious, discredited argument. Health care providers exist to treat and heal. They put their utmost efforts in to saving lives, and lawsuits make no contribution to that end.”
Schroder added he felt the order also “ignores the needs of those who have re-tooled facilities or ramped up production of personal protective equipment” and businesses who are incurring additional risk to meet the needs for PPE should receive “safe harbor” for doing so.
“PCCJR calls on the legislature to take decisive action to protect the bulk of health care services left out of the governor’s order and to protect PPE manufacturers and distributors,” Schroder said, adding the state legislature focus on protecting businesses as they begin to re-open in Pennsylvania.
“Many are fearful of re-opening due to liability exposure. The fear of lawsuits will continue to cripple Pennsylvania’s economy unless that threat is lifted. Legislative action is required to prevent small shops and stores from being put out of business by COVID-19 related suits so Pennsylvania can re-open and get back to work,” Schroder stated.
Wolf stated previously that on May 8, restrictions in Pennsylvania such as the stay-at-home order will ease, beginning with the 24 counties with the lowest rates of coronavirus infection.
“As much as I want to get us back to normal, our response must be measured. Lifting restrictions overnight will be a process and cannot happen overnight,” Wolf said.
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com