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On May 6, 2020, PA Governor Wolf entered an Executive Order which grants broad-based civil immunity against medical negligence claims to individual health care workers providing COVID-19 related treatment to patients. This protects health care workers from medical malpractice during the COVID-19 global pandemic.
In April, the Pennsylvania Medical Society asked the Governor to grant temporary immunity from medical malpractice claims during the COVID-19 pandemic, citing concerns that health care workers are taking on roles outside their specialties and that volunteer workers have come from other states or out of retirement to assist Pennsylvania during the crisis. The executive order entered on May 6 appears to respond to those concerns.
The Governor’s Order states in relevant part:
Pursuant to 35 Pa. C.S. §7704(a), neither the Commonwealth nor any political subdivision thereof nor other agencies nor, except in cases of willful misconduct, the agents, employees or representatives of any of them engaged in any emergency services activities, nor, except in cases of willful misconduct or gross negligence, any individual or other person under contract with them to provide equipment or work on a cost basis to be used in disaster relief nor except in cases of willful misconduct or gross negligence, any person, firm, corporation, or an agent or employee of any of them engaged in disaster services activities shall be liable for the death of or any injury to a person or for loss or damage to property as a result of that activity.
By its terms, the immunity does not extend to acts or omissions that would constitute a crime, gross negligence, willful misconduct, or acts arising from non-COVID-19 medical treatment. The civil immunity for COVID-19 related treatment applies to “professionals working in health care facilities as defined by the Health Care Facilities Act, as well as nursing facilities, personal care homes, assisted living facilities”, or “other alternative care sites” being 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.”
The Order also covers “any person, organization or authority owning or controlling real estate or other premises, who voluntarily and without compensation grants a license or privilege or other permits the designation or use of the whole or any part or parts of the real estate or premises for an emergency services purpose.” Hence, the Mohegan Sun casino near Wilkes-Barre which has been temporarily tagged for use as a mass testing site would presumably be covered by this Order.
The immunity order stops at hospital doors; it does not protect physicians seeing patients through private practices and other out-patient settings. The Order will be in effect through the duration of the Governor’s declaration of a public health emergency. Presumably, once the emergency declaration is lifted, the immunity order will end.
Not surprisingly, plaintiffs’ medical malpractice attorneys have objected to this immunity order, saying that it is not necessary. How the Governor’s immunity order plays out in the medical negligence arena remains to be seen. The governors of Illinois and New York have also issued executive orders limiting health care workers’ liability during the COVID-19 pandemic
Attorney Jennifer Weed is a member of the firm’s Medical Malpractice Defense Group, counseling hospitals and medical professionals in medical malpractice litigation and risk management matters.