NJ Grants Legal Immunity to COVID-19 Health Care Providers

LILO H. STAINTON | APRIL 15, 2020

NJ Spotlight

Intensive care unit, Holy Name Medical Center

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New Jersey’s hospitals and health care professionals responding to the coronavirus are now largely protected from legal liability if a patient is injured or dies while under their care during the current  pandemic crisis, according to a law Gov. Phil Murphy signed Tuesday.

The law — retroactive to March 9 — is designed to “ensure that there are no impediments to providing medical treatment related to the COVID-19 emergency,” according to a statement of intent attached to the bill, which easily passed both houses of the state Legislature during an emergency vote Monday.

But multiple lawmakers, including some who did not participate in the vote, raised questions about the rushed process and lack of public input on the bill, the broad scope of the immunity and the impact it could have on some families, especially in communities of color that are suffering disproportionately in the pandemic.

Sen. President Steve Sweeney (D-Gloucester), a lead sponsor of the bipartisan measure, said some health care workers have been hesitant to volunteer for fear they could be held liable if patients don’t recover.

He said the Murphy administration had pressed for quick passage to protect the workforce and ensure hospitals have the staff resources needed to continue to meet patient demand during this current public health crisis.

“What is worse,” providing broader immunity or “somebody dying because a doctor isn’t there?” Sweeney asked lawmakers with concerns. “This is a public health emergency and we need to act now.”

The law provides legal immunity to a range of clinicians, including those practicing outside the normal scope of their license. It also protects hospitals — including temporary facilities — and health care systems for actions taken by their staff, representatives or volunteers in relation to COVID-19 cases. It also covers decisions made about the allocation of ventilators or other scarce resources during the current emergency.

Lawmakers amended the legislation Monday to make clear it does not protect medical providers treating patients “in their normal course of business,” like a cardiologist caring for a patient with a heart attack or an obstetrician delivering a baby. It also does not apply to outright criminal acts, fraud, gross negligence, recklessness or willful misconduct.

“It is not the Legislature’s intent to grant immunity for medical services, treatment and procedures that are unrelated to the COVID-19 emergency,” the amended introduction states.

Protections for retirees, others

As signed, the law codifies many of the legal protections included in executive orders Murphy has already signed, including the public health emergency he declared in early March. Supporters said a statute change was needed to ensure proper immunity for frontline health workers, including thousands of medical volunteers who have stepped up to assist. Some of these volunteers are retired, had licenses that lapsed or issued by other states, or may be providing treatments that are not part of their usual work.

In addition, the law enables the state Department of Health to issue provisional or temporary certificates to paramedics and emergency medical technicians whose licenses may have expired or lapsed, if they provide certain documentation. The department can also grant temporary reciprocity to EMTs licensed in other states, if they are in good standing. The state can also waive fees and education requirements for all these individuals.

“This is an all-hands-on-deck moment and we thank everyone who is stepping forward,” Murphy said during his daily media briefing Tuesday. The state has tapped thousands of clinical volunteers and dozens of military medics to help at field hospital sites and assist overburdened long-term care facilities.

Supporters said the need for the legal immunity was further underscored by concerns that hospital staff may eventually be forced to choose which patients get access to life-saving treatments, like ventilators. On Saturday the DOH distributed “triage guidelines” with a decision-making matrix designed to help hospitals allocate these scarce resources; hospitals must formally adopt a version of these principals to be protected under the law.

While certain indicators suggest the impact of COVID-19 could be lessening in some parts of the Garden State, the overall number of cases — and fatalities — is expected to rise for weeks, if not months, to come. The viral infection has been diagnosed in nearly 69,000 residents, including more than 2,800 who have died.

Sponsored by Sweeney and GOP leader Sen. Tom Kean Jr., (R-Union), the legislation (S-233) was hailed by many lawmakers as a way to protect the health care “heroes” who are assisting with the medical response and putting themselves at risk for infection. Assemblymen James Kennedy (D-Middlesex) and John Burzichelli (D-Gloucester) championed the version in their house.

Questions about breadth of the measure

But lawmakers from both parties questioned the sponsors about the need for what they said was an overly broad immunity bill. One fear is that it could jeopardize treatment for African Americans and other minority groups, some with higher rates of diagnosis and hospitalization in the epidemic. Others noted it left their families with limited legal recourse to challenge resource allocation and treatment decisions.

By way of example, Sen. Nia Gill (D-Essex) suggested the measure appeared hypothetically to protect a dentist drafted by a hospital to help treat COVID-19 patients. Gill also took Sweeney to task for the rush to vote, noting multiple versions of the bill were distributed over the Easter weekend.

“This bill is far outside the scope of the governor’s Executive Order,” said Gill. She and Sen. Joseph Vitale Jr. (D-Middlesex) voted ‘no’ while a handful of other lawmakers abstained.

The Assembly advanced the measure without any ‘no’ votes, but a half-dozen members either did not participate or abstained. The abstentions included Assemblyman Jamel Holley (D-Union), who called the measure “inhumane” in a press release issued Tuesday.

“As elected officials, it is with great hopes that we would want to provide thoughtful legislation to the public,” he said. “But impacting the constitutional rights of the citizenry without its input hits all aspects of governmental failure.”

Under the law, the immunity also extends to “any act or omission taken in good faith” by providers or hospitals as they “support efforts to treat COVID-19 patients and prevent the spread” of the disease during the current public health emergency. This includes telemedicine practices and diagnostic measures, including for those who specialize in other areas of practice.

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