PRACTICE UPDATE: COVID-19 LIMITATIONS OF LIABILITY FOR HEALTH CARE PROVIDERS EXPANDED IN NY AND CT
New York
On April 3, 2020, the Governor of New York signed into law the Emergency Disaster Treatment Protection Act. The law (S.07506), which was enacted as part of an amended state budget, expands qualified immunity for health care institutions and providers during the COVID-19 public health emergency. The law protects health care facilities and professionals from civil or criminal liability for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services during the COVID-19 public health emergency.
Key points:
>“Damages” include economic and non-economic losses;
>“Facilities” include hospitals, nursing homes, or other licensed facilities;
>“Health care professional” includes individual providers, employees, agents, volunteers, home care services workers; and health care facility administrators, executives, supervisors, board members or trustees responsible for directing, supervising or managing a health care facility and its personnel;
>“Health care services” includes services related to COVID-19 as well as “the care of any other individual who presents at a health care facility or to a health care professional” during the period of the COVID-19 emergency declaration and provided in good faith;
>The immunity does not apply if the harm or damages were caused by an act or omission constituting willful or intentional criminal misconduct, gross negligence or reckless misconduct;
>Acts, omissions or decisions resulting from a resource or staffing shortage shall not be considered to be willful or intentional criminal misconduct, gross negligence or reckless misconduct; and
>Effective date and term is from March 7, 2020 through the expiration of the COVID-19 emergency declaration.
Connecticut
On April 5, 2020, Governor Ned Lamont issued an Executive Order which provides protection for health care providers from civil liability for “actions or omissions in support of the State’s COVID-19 response.”
Key points:
>Applies to any health care professional or health care facility;
>Provides immunity from suits for civil liability for any injury or death alleged to have been sustained because of the individual’s or health care facility’s acts or omissions undertaken in good faith while providing health care services in support of the State’s COVID-19 response;
>Applies to acts or omissions undertaken because of a lack of resources, attributable to the COVID-19 pandemic, that renders the health care professional or health care facility unable to provide the level or manner of care that otherwise would have been required in the absence of the COVID-19 pandemic and which resulted in the damages at issue;
>The immunity extends to any licensed provider, including those acting as volunteers, and applies to any acts or omissions occurring during the time period March 10, 2020 (the date the public health and civil preparedness was declared), through any extensions or renewals of the declaration.
>Immunity does not extend to acts of gross negligence, fraud, other crimes, etc.
Read Governor Lamont’s Executive Order at:
https://portal.ct.gov/-/media/ Office-of-the-Governor/ Executive-Orders/Lamont- Executive-Orders/Executive- Order-No-7U.pdf?la=en
Please contact Jeannine M. Foran, Esq. (jforan@hpmb.com) or Daniel S. Ratner, Esq. (dratner@hpmb.com) if you have any questions.