Wednesday, June 17, 2020
Arkansas Governor Issues Executive Order Limiting Medical Care Provider Liability for COVID-19 Related Services

Arkansas Governor Asa Hutchinson issued an executive order on Monday, June 15, 2020, that granted immunity for certain actions taken by medical care providers in response to the COVID-19 pandemic. 

The purpose of Executive Order 20-34 is to “ensure access to healthcare resources” available to treat COVID-19 pursuant to the Arkansas Emergency Services Act of 1973, which authorizes “a disaster management system embodying all aspects of pre-disaster preparedness and post-disaster response.”  See, Ark. Code Ann. § 12-75-103(b).

The Executive Order declares that health care providers are “Emergency Responders” as defined by the Arkansas Emergency Services Act of 1973 and authorizes and requests that health care providers “perform services directed at the prevention, treatment, mitigation, or cure of COVID-19,” and perform other “Emergency Management Functions” within the scope of their licensure.

“Emergency Management Functions” include:

  • Triage, diagnostic testing, and/or treatment to individuals with known or suspected COVID-19;

  • Cancelling, postponing, or denying elective procedures;

  • Redeploying or cross-training staff not typically assigned to such duties, to the extent necessary to respond to the COVID-19 health emergency;

  • Planning to or enacting crisis standards of care measures, such as modifying numbers of beds, preserving personal protective equipment, and triaging access to services or equipment; and

  • Reducing recordkeeping requirements to the extent necessary for healthcare providers to perform tasks as may be necessary to respond to the COVID-19 public health emergency. 

Most notably, the Order also provides immunity from liability for any alleged negligence resulting in death, injury, or property damage claimed to have been sustained as a result of any act or omission by a health care provider in the course of providing COVID-19 related Emergency Management Functions during this public health emergency. This immunity, however, does not apply to any act or omission that is willful, reckless, or intentional misconduct. 
Healthcare providers are also declared immune from liability for using any prescription drug or device to treat a known or suspected COVID-19 infection, provided that the prescription of the drug or device is within the scope of the provider’s license; the provider prescribes the drug or device in accordance with the most current written recommendations of a U.S. Government agency; and the provider obtains and documents the patient’s informed consent to the treatment in the patient’s medical record.
 
For the full text of Executive Order 20-34, please click here.
Caitlin D. Kennedy  joined the firm in 2018 as an associate in the Medical Malpractice Group. Her focus is on representing physicians, hospitals and medical providers in malpractice litigation.

Disclaimer:  The information included here is provided for general informational purposes only and should not be a substitute for legal advice nor is it intended to be a substitute for legal counsel. For more information or if you have further questions, please contact one of our  Attorneys.
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