COVID-19 UPDATE from Bellas & Wachowski

Does Pritzker’s Order Vaccinate Health Workers from Liability?

Illinois Governor J.B. Pritzker issued an executive order on April 1 designed to protect health care providers from litigation arising out of COVID-19 cases. How does it do so, and how well would it work in practice if a lawsuit were filed?  The Emergency or Disaster Treatment Protection Act notes that statewide public health emergencies require “an enormous response” from different levels of governments working alongside private and public health care providers.

As such, the order attempts to “promote the public health, safety and welfare of all citizens by broadly protecting the health care facilities and health care professionals in this state from liability that may result from treatment of individuals with COVID-19 under conditions resulting from circumstances associated with the public health emergency.”

Pritzker’s order declares immunity from “any liability, civil or criminal, for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services,” so long as COVID-19 emergency rules and other applicable laws are followed; the act or omission related to the COVID-19 outbreak is in support of the state’s directives; and the services are provided in good faith.

Exceptions to this immunity are made for “willful or intentional criminal misconduct, gross negligence, reckless misconduct, or international infliction of harm,” although acts, omissions or decisions due to resource or staffing shortages are exceptions to these exceptions.

Such issues have arisen in the past, for example during the H1N1 pandemic in 2009. An article that appeared in the Illinois Bar Journal in June 2010 detailed a number of existing federal and state statutes that can provide legal immunities for local governments in public health emergencies.

The federal laws included the Public Readiness and Emergency Preparedness Act of 2005, which provides that “a covered person shall be immune from suit and liability” as a result of administering or prescribing a “covered countermeasure” during a public health crisis. The Volunteer Protection Act of 1997 further shields volunteers serving government entities.

At the state level, the Local Government and Governmental Employees Tort Immunity Act protects local governments and their employees from failure or make an adequate physical or mental examination when using “due care” and acting within the scope of their employment.

The Illinois Emergency Management Agency Act (IEMA) shields political units who conduct emergency management responses or recovery activities. And the Good Samaritan Act protects a wide range of medical providers who handle volunteer services during a wide variety of disasters, including an “epidemic, or pandemic.”

Pritzker’s order is derived partly from a section in the IEMA and asserts that the act provides civil immunity for employees and agents of the state in addition to the state itself, and further asserts that healthcare workers should be considered agents of the state because they are essentially performing a contract with the state during this pandemic.

The order also references the Emergency Medical Services Systems Act, which covers emergency providers even if they are not providing emergency services at the time. Lastly, the order cites the Good Samaritan Act. All told, Pritzker’s order attempts to ground its provisions within longstanding policies and holds there is nothing particularly groundbreaking contained therein.

But it’s unclear whether this is true, and the order may be somewhat selective in terms of relying on certain provisions of the statutes it cites while ignoring others. While it might very well be valid when applied to those directly working with public health authorities, expanding protections to anyone providing health care services related to COVID 19 runs counter to the fact that Illinois gives the legislature the power to create immunities—not the governor.

As such, a plaintiff harmed due to medical services provided by those not directly covered under the aforementioned acts could challenge the governor’s broad assertion of immunity for all health care workers as being unsupportable. It is unclear at best that the governor has the ability to effectively deputize the whole medical profession in the state of Illinois.

In other states, legislatures have weighed in directly on this matter. Wisconsin has carved a narrow path to protecting only those directly involved in emergency services, while New York has taken the broader approach advocated by Pritzker’s order. Absent legislative action in Illinois, however, plaintiff’s attorneys may be awaiting the right medical malpractice case that gives them grounds to seek a declaratory judgment and attack the order’s validity.