Coronavirus Update: Gov. Cuomo’s Executive Order 202.10 (3/23/20)
Qualified Immunity
Governor Cuomo’s Executive Order provides that all physicians, physicians assistants, specialist assistants, nurse practitioners, licensed registered nurses and licensed practical nurses “shall be immune from civil liability for any injury or death alleged to have been sustained directly as a result of an act or omission in the course of providing medical services in support of the State’s response to the COVID 19 outbreak, unless it can be established that such injury or death was caused by the gross negligence of such medical professional.” The stated purpose of this Order is to ensure “the State of New York has adequate bed capacity, supplies, and providers to treat patients affected with COVID-19, as well as patients afflicted with other maladies, is of critical importance” and to eliminate “any obstacle to the provision of supplies and medical treatment is necessary to ensure the New York healthcare system has adequate capacity to provide care to all who need it.”
EO 202.10 does not on its face extend qualified immunity to hospitals or other institutional providers, although elsewhere it “permit[s] and require[s] general hospitals to take all measures necessary to increase the number of beds available to patients.” EO 202.10 also does not address civil liability for non-COVID-19 related elective treatment that is cancelled or postponed in response to the directive issued to all general hospitals, ambulatory surgery centers, office based surgery practices and diagnostic and treatment centers in order to increase bed capacity. Further, EO 202.10 does not define “elective treatment” in this context, but further guidance is expected on this issue.
But given the stated goals of this Executive Order – to encourage treaters to provide services in response to the Coronavirus emergency and to ensure adequate equipment and services in response to the emergency – it seems likely that individual treaters and institutions alike will seek qualified immunity from claims by both COVID-19 and non-COVID-19 patient for any claims arising from the medical community’s response to the Coronavirus emergency.
Scope of Practice
Certain scope of practice restrictions have been relaxed, including:
Nurse Practitioners are allowed to practice independently without a written practice agreement or collaborative relationship with a physician or hospital
Physician Assistants and Specialist Assistants are allowed to perform medical services without oversight from a supervising physician
Certified Registered Nurse Anesthetists are permitted to administer anesthesia without the supervision of a physician
It would seem that the relaxed scope of practice standards would apply to providers rendering care to COVID 19 and non COVID 19 patients in support of the state’s effort to provide care during the emergency.
Documentation
Health care providers are relieved of record keeping requirements to the extent necessary to perform tasks as may be necessary to respond to the COVID-19 outbreak, including, but not limited to, requirements to maintain medical records that accurately reflect the evaluation and treatment of patients, or requirements to assign diagnostic codes or to create or maintain other records for billing purposes. Any person acting reasonably and in good faith under this provision shall be afforded absolute immunity from liability for any failure to comply with any recordkeeping requirement.
Key practice points:
If non COVID 19 care or treatment must be postponed, document communication with the affected patients regarding the same.
Document rationale for postponing or cancelling any treatment, whether in response to COVID 19 related exposure concerns, directives from hospitals or other providers, unavailability of equipment, i.e., PPE, biologicals, gloves, and/or personnel necessary to provide care and treatment .
Develop a process to prioritize rescheduling treatment based on necessity or urgency once restrictions are lifted.
To date, Connecticut has not issued a similar executive order or legislation. We continue to monitor federal and state governmental directives.
Please contact Jeannine M. Foran, Esq. (jforan@hpmb.com) or Daniel S. Ratner (dratner@hpmb.com) if you have any questions.
Read Governor Cuomo’s Executive Order here: https://on.ny.gov/2vUlI2z