COVID-19 MEDICAL MALPRACTICE
IMMUNITY LEGISLATION
April 16, 2020
Executive Summary of Legislation 

On April 13, 2020, the New Jersey Legislature passed legislation providing blanket immunity from malpractice claims as of the retroactive date of March 9, 2020. The immunity does not apply to acts or omissions constituting criminal, gross negligence, recklessness, or willful misconduct. The Legislation further provides immunity against claims arising from allocation of scarce resources, such as ventilators.

The legislation is expressly intended to “remove impediments to providing medical treatment related to the COVID-19 emergency.” However, there is a strong legislative interpretive statement limiting the immunity to medical care rendered in connection with treatment of COVID-19 patients.

The legislation also includes a provision empowering the Director of Consumer Affairs to suspend, modify, or adopt rules governing licensed occupations or professions. 

Scope of Immunity for “Health Care Professionals” and “Facilities”

The legislation includes immunities for two broad classes of providers: (1) health care professionals; and (2) health care facilities/systems. Specifically, under the legislation:

A “health care professional is not liable for civil damages for injury or death alleged to have been sustained as a result of an act or omission by the health care professional in the course of providing medical services in support of the State’s response to the outbreak of coronavirus disease”; and
 
A “health care facility” or a “health care system that owns or operates more than one health care facility” is not “liable for civil damages for injury or death alleged to have been sustained as a result of an act or omission by one or more of its agents, officers, employees, servants, representatives or volunteers, if, and to the extent, such agent, officer, employee, servant, representative or volunteer” is immune from liability pursuant to the legislation.

The legislation expressly excludes “acts or omissions constituting a crime, actual fraud, actual malice, gross negligence, recklessness, or willful misconduct.”           

The immunity also extends to “any act or omission undertaken in good faith by a health care professional or healthcare facility or health care system to support efforts to treat COVID-19 patients and to prevent the spread of COVID-19”, including but not limited to engaging in telemedicine or telehealth, and diagnosing or treating patients outside the normal scope of the health care professional’s license or practice.

Definition of Health Care Facility and Professional

The legislation defines “healthcare facility” broadly to include “any modular field treatment facility and any other site designated by the Commissioner of Health for temporary use for the purpose of providing essential services in support of the State’s response to the outbreak of coronavirus disease.”

“Health care professional” is broadly defined to include: 

a physician, physician assistant, advanced practice nurse, registered nurse, licensed practical nurse, or other health care professional whose professional practice is regulated pursuant to Title 45 of the Revised Statutes or who is otherwise authorized to provide health care services in this State, an emergency medical technician or mobile intensive care paramedic certified by the Commissioner of Health pursuant to Title 26 of the Revised Statutes or who is otherwise authorized to provide health care services in this State, and a radiologic technologist regulated pursuant to Title 26 of the Revised Statutes or who is otherwise authorized to provide health care services in this State.

Legislation Provides Immunity Against Claims Arising From Allocation of Scarce Resources

The legislation further provides that a health care facility that owns or operates more than one health care facility would not be criminally or civilly liable for damages alleged to have been sustained as a result of an act or omission by the facility or system or their agents during the corona virus crisis in connection with the allocation of mechanical ventilators or other “scarce medical resources.” 
           
However, the provision only applies if the health care facility or system adopts and adheres to a “scarce critical resource allocation policy” that “incorporates the core principles identified by the Commissioner of Health in an executive directive or administrative order,” and the health care facility’s or system’s agents “would not be civilly or criminally liable for an injury caused by any act or omission” pursuant to the legislation. 

Regulation of Licensed Profession or Occupation 
 
The legislation provides that the Director of the Division of Consumer Affairs may issue an administrative order to suspend temporarily any provision of Title 45 of the Revised Statutes or suspend or modify temporarily any rule adopted concerning the practice of any profession or occupation for which licenses, certificates, registrations, or certifications are issued by the division or any board or other body in the division.

The Director is further empowered to adopt or prescribe temporarily any rule concerning the practice of any profession or occupation for which licenses, certificates, registrations, or certifications are issued by the division or any board or other body in the division, if the director determines, upon concurrence by the Attorney General, that such order is necessary to promote the public welfare and further such other purposes for which the state of emergency or public health emergency was declared.
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