Pennsylvania Medical Liability Immunity to Medical Practitioners caring for COVID-19 Patients
Since the outset of the COVID-19 pandemic, health care workers and facilities were faced with combating unimaginable circumstances and number of patients. Given that the COVID-19 pandemic is the leading health concern in 2020, and very likely 2021, health care workers and facilities were undoubtedly concerned about the potential liability they may be exposed to as a result of the pandemic.
In an ordinary medical malpractice action, the Plaintiff must establish the elements of negligence which includes:
- a duty owed by the physician to the patient,
- a breach of that duty by the physician,
- that the breach was the proximate cause of the harm suffered, and
- the damages suffered were a direct result of harm
Of course, health care workers caring for their COVID-19 patients would satisfy that first element which, in turn, could potentially expose them to liability if the patient experienced a bad outcome as a result of COVID-19. Realizing the potential for liability exposure that COVID-19 will have on the health care workers caring for COVID-19 patients, Governor Wolf issued an executive order on May 6, 2020 granting immunity for certain practitioners.
The Executor Order designates specific individuals as agents of the Commonwealth solely and exclusively for purposes of immunity from civil liability due to emergency services activities or disaster emergency response. The immunity was granted to “any individual who holds a license, certificate, registration or certification or is otherwise authorized to practice a health care profession or occupation in this Commonwealth, and who is engaged in emergency services activities or the provision of disaster services activities related to the Commonwealth’s COVID19 disaster emergency response”.
Specifically, it applies to the follow entities/individuals engaged in emergency services activities or the provision of the :
- health care facilities
- i.e. a general, chronic disease or other type of hospital, a home health care agency, a home care agency, a hospice, a long-term care nursing facility, cancer treatment centers using radiation therapy on an ambulatory basis, an ambulatory surgical facility, a birth center regardless of whether such health care facility is operated for profit, nonprofit or by an agency of the Commonwealth or local government as defined by 35 Pa. Stat. § 448.802a;
- any nursing facility;
- personal care home; and
- A premise in which food, shelter and personal assistance or supervision are provided for a period exceeding 24 hours, for four or more adults who are not relatives of the operator, who do not require the services in or of a licensed long-term care facility, but who do require assistance or supervision in activities of daily living or instrumental activities of daily living.
- The term includes a premise that has held or presently holds itself out as a personal care home and provides food and shelter to four or more adults who need personal care services, but who are not receiving the services
55 Pa. Code § 2600.4
- assisted living facility
- Any premises in which food, shelter, assisted living services, assistance or supervision and supplemental health care services are provided for a period exceeding 24-hours for four or more adults who are not relatives of the operator, who require assistance or supervision in matters such as dressing, bathing, diet, financial management, evacuation from the residence in the event of an emergency or medication prescribed for self-administration.
55 Pa. Code § 2800.4
- Any premises in which food, shelter, assisted living services, assistance or supervision and supplemental health care services are provided for a period exceeding 24-hours for four or more adults who are not relatives of the operator, who require assistance or supervision in matters such as dressing, bathing, diet, financial management, evacuation from the residence in the event of an emergency or medication prescribed for self-administration.
However, the term “health care facility” does not include an office used primarily for the private practice of a health care practitioner, nor a program which renders treatment or care for drug or alcohol abuse or dependence unless located within a health facility, nor a facility providing treatment solely on the basis of prayer or spiritual means. Additionally, the term health care facility does not apply to a facility which is conducted by a religious organization for the purpose of providing health care services exclusively to clergymen or other persons in a religious profession who are members of a religious denomination. 35 Pa. Stat. § 448.802a
Thus, the Order essentially applies to those providing care in hospital and long-term care facility settings. The Order provides that these individuals “shall be immune from civil liability and shall not be liable for the death of or any injury to a person or for loss of or damage to property as a result of the emergency services activity or disaster services activity described above, except in the cases of willful misconduct or gross negligence, to the fullest extent permitted by law.” However, the immunity does not extend to health care professionals rendering non-COVID-19 medical and health treatment or services to individuals. The Order remains in effect for the duration of the COVID-19 disaster emergency.
With respect to healthcare workers in outpatient settings, the Order remains silent. Thus, presently, any healthcare workers that practice in the outpatient setting can potentially be exposed to medical liability as a result of COVID-19.
The full May 6, 2020 Executive Order can be found here.
