COVID-19: Immunity from Civil Liability for Health Care Facilities and Providers June 1, 2020

In response to the unprecedented outbreak of COVID-19, on April 1, 2020, Governor J.B. Pritzker issued an executive order granting immunity from civil liability to Illinois health care providers and facilities. This immunity extends to any injury or death that occurs while providing health care services in response to the COVID-19 outbreak. (Governor Pritzker, Executive Order 2020-19, Executive Order in Response to COVID-19, Executive Order No. 17, §§ 3-6). Specifically, Health Care Facilities, Health Care Professionals, and Health Care Volunteers are “immune from civil liability for any injury or death alleged to have been caused by any act or omission”… while “engaged in the course of rendering assistance to the State by providing health care services in response to COVID-19 outbreak.” (Id.). An exception exists for conduct deemed willful or grossly negligent. (Id.).

This immunity broadly extends to “Health Care Facilities,” “Health Care Professionals,” and “Health Care Volunteers.” (Id. at § 1, 3-6). The Order defines “Health Care Facilities” to include hospitals, long term care nursing facilities, community-integrated living arrangement facilities, skilled mental health rehabilitation facilities, kidney disease treatment centers, emergency medical service providers, outpatient surgery centers, among others. (Id. at § 1). “Health Care Professionals” is defined as any licensed or certified health care or emergency services workers. (Id. at § 1). In addition, Governor Pritzker modified this immunity on April 30, 2020, to also include assisted living establishments and supportive living facilities. (Governor Pritzker, Executive Order 2020-33, Executive Order in Response to COVID-19, Executive Order No. 31, Part 1).

As the State of Illinois transitioned into Phase II of reopening the state, on May 13, 2020, Governor Pritzker created an additional immunity for hospitals and health care providers that continue to cancel or postpone elective surgeries and procedures in order to respond to the COVID-19 outbreak. Immunity is granted, specifically “from civil liability for any injury or death alleged to have been caused by any act or omission by the Hospital or Health Care Professional, which injury or death occurred at a time when a Hospital or Health Care Professional was rendering assistance to the State in response to the COVID-19 outbreak by providing health care services consistent with current guidance issued by IDPH.” (Governor Pritzker, Executive Order 2020-37, Executive Order in Response to COVID-19, Executive Order No. 35, § 3).

However, for those health care facilities and providers that choose to begin resuming the performance of elective surgeries and procedures beginning on or after May 11, 2020, immunity is also extended for “any injury or death related to the diagnoses, transmission, or treatment of COVID-19 alleged to have been caused by any act or omission by the hospital or health care professional, which injury or death occurred at a time when rendering assistance to the state in response to the COVID-19 outbreak.” (Id. at § 4). In fact, this Executive Order continues to extend civil immunity to health care facilities and professionals providing services in a health care facility to be immune for any injury or death relating to the diagnoses, transmission, or treatment of COVID-19. (Id. at § 5). Similar to the other orders, exceptions exist for “willful misconduct” for private institutions. (Id. at §§4-5). The Gubernatorial Disaster Proclamation within Illinois currently extends through June 29, 2020.

Federal immunities also exist for health care professionals in the midst of this pandemic. Pursuant to the Public Readiness and Emergency Preparedness Act (“PREP Act”), on March 10, 2020, the Secretary of Health and Human Services issued a Declaration for Medical Countermeasures Against COVID-19. (See 85 F.R. 15198 (Mar. 17, 2020)). The Declaration broadly extends immunity under federal law and state law for conduct related to the manufacture, testing, development, distribution, administration and use of medical countermeasures to COVID-19. Under this Declaration, civil immunity is afforded to health care providers who prescribe, administer, or dispense any antiviral or other drugs or vaccines for the purposes of treating or preventing the transmission of the SARS-CoV-2 virus. (Id.). Though, exceptions and limitations may apply, including for death and serious injuries caused by willful misconduct. (Id.). Further, this Declaration was recently amended to further extend immunity to covered countermeasures authorized under the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), which includes respiratory devices. (85 F.R. 21012 (April 15, 2020)). These protections extend until the final day of the emergency period of October 1, 2024, whichever occurs first. (Id.).

This area is vastly evolving, and our team is working collaboratively to stay current on these legal developments. For answers to any additional questions or further guidance relating to these and other liability protections, please contact our team members at Barker, Castro, Kuban & Steinback LLC.

The information provided on this website does not, and is not intended to, constitute legal advice. Instead, all information, content, and materials available on this site are for general informational purposes only. Information on this website may not constitute the most up-to-date legal or other information.

COVID-19: Immunity from Civil Liability for Health Care Facilities and Providers

This immunity broadly extends to “Health Care Facilities,” “Health Care Professionals,” and “Health Care Volunteers.” (Governor Pritzker, Executive Order 2020-19, Executive Order in Response to COVID-19, Executive Order No. 17, § 1, 3-6). The Order defines “Health Care Facilities” to include hospitals, long term care nursing facilities, community-integrated living arrangement facilities, skilled mental health rehabilitation facilities, kidney disease treatment centers, emergency medical service providers, outpatient surgery centers, among others. (Id. at § 1). “Health Care Professionals” is also broadly defined as any licensed or certified health care or emergency services workers. (Id. at § 1). In addition, Governor Pritzker modified this immunity on April 30, 2020, to also include assisted living establishments and supportive living facilities. (Governor Pritzker, Executive Order 2020-33, Executive Order in Response to COVID-19, Executive Order No. 31, Part 1).

This Executive Order remains in effect in the State of Illinois through the remainder of the Gubernatorial Disaster Proclamation, which is currently through May 29, 2020. (Governor Pritzker, Executive Order 2020-33, Executive Order in Response to COVID-19, Executive Order No.31, Part 1).

Not guilty for Hospital – Alleged negligence in performing epidural steroid injection on a patient taking blood thinners resulting in fatal epidural hematoma

Circuit Court of Cook County
Counsel: Steve Steinback & Jason Gluskin
Demand: $3.8 million
Asked: $3.3 million
Outcome: Not Guilty

Plaintiff alleged negligence against Hospital and co-defendant pain management physician for performing an epidural steroid injection on a patient taking Plavix which resulted in an epidural hematoma, quadriparesis, and the patient’s eventual demise. BCKS represented the Hospital. Plaintiff alleged that the Hospital failed to confirm that the patient had stopped taking blood thinners on the date of the injection. Plaintiff further alleged agency for co-defendant’s alleged negligence, and institutional negligence for failing to have policies and procedures in place to ensure that patients stopped taking blood thinners prior to an injection. Plaintiff also sought recovery under the theory of res ipsa loquitor. In addition, Plaintiff requested and received a 5.01 jury instruction based on the Hospital’s alleged failure to maintain the medication reconciliation form completed on the date of the procedure. We were successful in barring Plaintiff’s agency claim and institutional negligence claim during hearings on motions in limine. We maintained that the nursing staff, based on custom & practice, complied with the standard of care. The jury deliberated for two days, and returned a verdict in favor of the Hospital and against co-defendant pain management physician.

Not Guilty – Alleged Failure to Treat Abdominal Aortic Aneurysm Resulting in Fatal Rupture

Circuit Court of Cook County
Counsel: Steve Steinback & Jason Gluskin
Demand: $12.6 million
Asked: $9,727,354
Outcome: Not Guilty

Plaintiff alleged that defendants failed to properly treat decedent’s abdominal aortic aneurysm which resulted in a fatal rupture. Plaintiff maintained that the defendants failed to inform decedent about the urgent nature of his 7 cm abdominal aortic aneurysm, and failed to refer the decedent to a vascular surgeon for repair of the aneurysm. The defendant physicians confirmed, though not documented, that they impressed upon the decedent the seriousness of the condition. In addition, the general surgeon (represented by BCKS) confirmed that he advised decedent to see a vascular surgeon. Plaintiff countered that the general surgeon failed to advise decedent that he needed to see a vascular surgeon on an urgent basis. As a result, the decedent planned to schedule a vascular surgery consult through his primary care physician six weeks later. The aneurysm ruptured one week prior to the decedent’s appointment with his primary care physician, and the decedent expired following repair surgery. The jury deliberated for four hours, and returned a verdict in favor of all defendants.

NOT GUILTY IN FAILURE TO PREVENT FATAL PULMONARY EMBOLISM

Circuit Court of Cook County Illinois
Counsel: Steven Steinback & Christopher Reeder
Demand $2,200,000
Asked: $3.0 million
Outcome: Not Guilty

The decedent (male, 47) presented to the ED after suffering a traumatic distal tibia and fibula fracture. He was admitted, surgery was performed, and he remained an inpatient for one week. Lovenox was started post-operatively and continued throughout the hospitalization. During the hospitalization, the decedent’s ambulation status improved. Lovenox was not continued following discharge. Eight days after discharge, the decedent died from a pulmonary embolism due to deep vein thrombosis.

Plaintiff alleged that the defendants failed to order appropriate pharmacologic DVT prophylaxis (Lovenox) at discharge, and that the defendants were required to complete a Doppler scan prior to discharge. Plaintiff also waged claims of institutional negligence based on a purported failure to institute a written procedure regarding DVT prophylaxis.

The defendants asserted that they complied with the standard of care at all times. In support of this contention, the defendants cited to the applicable guidelines, which recommended against prescribing Lovenox to a patient with an isolated distal lower extremity fracture at the time of discharge. The applicable guidelines similarly recommended against performing an ultrasound in an asymptomatic patient, such as the decedent. The hospital further asserted that the standard of care did not require a hospital to maintain a formal written procedure directing physician decision-making with respect to post-discharge DVT prophylaxis.

Not Guilty After Hair Transplant Leaves Scarring at Donor Site

Circuit Court of Cook County Illinois
Counsel: Anne Scrivner Kuban and Krista Frick
Demand 120,000
Asked: $195,000
Outcome: Not Guilty

Defendant dermatologist performed a graft hair transplant procedure on Plaintiff on December 12, 2012 utilizing an excised donor strip from the back of Plaintiff’s head. Hair did grow in the transplanted area at the front of Plaintiff’s hairline but Plaintiff contended that he had suffered excessive scarring in the donor area of his scalp. Plaintiff claimed that the scarring interfered with his ability to socialize, date, and keep a job. Plaintiff had undergone two previous hair transplants and this procedure was his third.

The defendant physician asserted that he examined Plaintiff’s scalp two weeks prior to the procedure, assessed Plaintiff’s scalp elasticity as poor and informed Plaintiff that there was an increased risk of scarring. It was brought out at trial that Plaintiff failed to comply with the preoperative instructions specifically the abstinence from alcohol 7 days prior to the surgery. Other medical records from Plaintiff’s primary care physician confirmed that Plaintiff consumed alcohol 4 days before the procedure. The defendant physician testified that he would not have performed the transplant had he known that Plaintiff consumed alcohol 4 days before the procedure due to the increased risk of scarring. The defendant physician offered to perform a scar revision on Plaintiff’s scalp but Plaintiff never returned to the defendant physician.

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