Legal Protections for Healthcare Workers during the COVID-19 Pandemic

March 31, 2020 | David E. Richman | Jeannine M. Farino | Benjamin P. Malerba | Health Services | Medical Malpractice Defense

At a time when medical professionals are overwhelmed by the COVID-19 crisis, Governor Cuomo issued an executive order expanding resources to healthcare workers. The goal is to meet the treatment demands of coronavirus patients, and most significantly, provide health care providers with protection, in most instances, from lawsuits for medical malpractice and other potential liability.

Executive Order 202.10 – which was issued on March 23, 2020, and whose provisions are in effect through April 22, 2020 – grants immunity to all physicians, physician assistants, specialist assistants, nurse practitioners, licensed registered professional nurses, and licensed practical nurses from civil liability for any injury or death alleged to have been sustained directly as a result of acts or omissions by such professional in the course of providing medical services in support of New York’s response to the COVID-19 outbreak, unless it is established that the alleged injury or death was caused by gross negligence. Therefore, patients who are treated for the coronavirus and their families cannot sue medical professionals for general negligence, but may sue them for gross negligence if the conduct rises to the level of wanton or reckless behavior, which is a difficult threshold to establish.

Interestingly, the Order is silent on whether civil immunity extends to hospitals, medical practices, urgent care facilities, ambulatory centers, and the like. It is not clear whether this omission was an oversight or intentional. Nevertheless, the Order, on its face, only mentions individual healthcare providers. It therefore appears that hospitals and other healthcare facilities where COVID-19 patients receive treatment may be subject to general negligence claims for their own acts or omissions relative to the treatment they provided to the patients. Furthermore, while the Order does not state specifically whether resident physicians and interns are included, they are arguably protected from civil liability as well since the language of the Order makes clear that this provision applies to all doctors, without differentiating between their rankings.

In addition, the Order enables certain healthcare professionals to render care without consulting with a supervising physician when they are otherwise required to do so by law. Specifically, the Order permits licensed nurse aestheticians, physician assistants, special assistants, and nurse practitioners to provide medical services appropriate to their education, training and experience without oversight by a supervising physician, and they will not face civil or criminal penalty related to the lack of supervision. This provision makes clear that these medical professionals may only render such medical care as long it is within their purview.

Under the Order, registered nurses may order the collection of throat and nasopharyngeal swab specimens from individuals suspected of being infected by COVID-19 for purposes of testing.

The Order also relaxes regulations that require medical professionals to maintain records of their treatments of patients, and in turn absolves them from any liability relative to the inability to comply with record-keeping requirements. It relieves healthcare providers of record-keeping requirements to the extent necessary to respond to the COVID-19 outbreak, including but not limited to, requirements to maintain medical records to 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 may be afforded absolute immunity from liability for any failure to comply with record-keeping requirements.

To address staffing issues and the demands of the growing number of COVID-19 patients, the Order provides as follows:

  1. That any healthcare facility is authorized to allow students in programs licensed in New York State to practice as a healthcare professional, to volunteer at the healthcare facility for educational credit as if the student had secured a placement under a clinical affiliation agreement, without entering into any such clinical affiliation agreement;
  2. Limits on working hours for physician and postgraduate trainees are removed;
  3. That all graduates of foreign medical schools having completed at least one year of graduate medical education may provide patient care in hospitals even if not licensed;
  4. That hospitals may use qualified volunteers or personnel affiliated with different hospitals;
  5. That radiological technicians and respiratory therapists, licensed and in current good standing in any state in the United States but not registered in New York are allowed to practice in New York without civil or criminal penalty related back to the lack of licensure; and
  6. That physician assistants, nurse practitioners, registered professional nurses, and licensed practical nurses licensed and in current good standing in New York but not registered in New York are allowed to practice in New York without any civil or criminal penalty related back to the lack of registration.

The Commissioner of Health may direct all hospitals and surgical centers to increase the number of beds available to patients, including by canceling elective surgeries and procedures. General hospitals must comply with this provision by submitting COVID-19 plans to the New York State Department of Health on a schedule to be determined by the Department of Health. General hospitals may be subject to penalties, including suspension or revocation of their operating certificates, if they are unable to meet the requirements necessary to meet the capacity directives contained in this Order.

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