As society’s care providers become increasingly overwhelmed by the COVID-19 pandemic, New York Governor Andrew Cuomo issued Executive Order 202.10, suspending and modifying certain healthcare laws in New York State. The aim of this Order is not only to ensure efficient and streamlined care to coronavirus patients, but also to provide some level of protection and reassurance to those front-line workers from malpractice liability that may arise as a result of such care.
What Does the Executive Order Include?
Most notably, Executive Order 202.10 dictates that medical care providers will be immune from civil liability for any injury or death alleged to have been sustained directly as a result of an act or omission by such medical professional in the course of providing medical services in support of New York State’s response to the COVID-19 outbreak, unless it is established that such injury or death was caused by gross negligence. This means that healthcare professionals cannot be sued for general negligence for the care and treatment rendered to patients for coronavirus, but they may still be sued for gross negligence if their conduct rises to the level of wanton or reckless behavior.
The Executive Order is ambiguous as to whether this will apply to care provided that is not COVID-19 related, but that is still affected or constrained by the pandemic.
The Executive Order also gets rid of record keeping requirements to the extent necessary for health care providers to perform tasks as may be necessary to respond to the COVID-19 outbreak and allows care providers to provide medical services without oversight from a supervising physician, so long as those medical services are within their purview.
In order to address the expected staffing issues that medical facilities will likely face, the Order removes limits on working hours for physicians and postgraduate trainees and allows care providers who are not registered to practice in New York to practice without penalty related to lack of licensure.
The Order also dictates that no pharmacist shall dispense hydrochloroquine or chloroquine except when written as prescribed for an FDA-approved indication or as part of a state approved clinical trial related to COVID-19, and no other experimental use shall be permitted.
Finally, per the Order, the Commissioner of Health is authorized to direct all general hospitals, ambulatory centers, medical facilities and diagnostic and treatment centers to increase the number of beds available to patients and to cancel all elective surgeries and procedures. General hospitals may be subject to penalties, including suspension or revocation of their operating certificates, if they are unable to meet these requirements.
Executive Order 202.10 is in effect until April 22, 2020, though this deadline will likely be extended.
Who Does the Executive Order Apply to?
The Executive Order includes the following medical professionals as immune from malpractice liability:
- Physician Assistants;
- Specialist Assistants;
- Nurse Practitioners;
- Licensed Registered Professional Nurses; and
Licensed Practical Nurses.
The Order does not specifically state whether resident physicians and interns are included in this immunity, however they likely are protected as the Order does not appear to differentiate between doctor’s rankings.
Executive Order 202.10 is notably silent as to whether this immunity extends to hospitals, urgent care facilities, medical practices and ambulatory services. It therefore appears to be the case that such facilities can still be subject to medical malpractice actions arising from their own acts or omissions relative to coronavirus treatment.
Is This Even Constitutional?
At first blush it would seem that such an order, while seemingly well intentioned, could be subject to legal challenge and deemed unconstitutional. The ability of an executive politician to remove an individual’s right to pursue a recognized legal remedy, without providing some sort of off-setting measure akin to Workers’ Compensation, appears to run afoul of long-standing principles of due process.
However, Governor Cuomo’s ability to suspend or unilaterally change state law stems from New York State Senate Bill S7919, which passed last month, and which allows him to undertake these actions so long as doing so assists the state in its disaster response.
Importantly, while the Order may indeed invade due process, that does not necessarily mean that it is impermissible, or even unconstitutional. Applying strict scrutiny review, the question becomes—is this Order necessary to serve a compelling state interest, and is it narrowly tailored to achieve that interest? The answer, to both, is most likely yes.
The ability of healthcare workers to provide the best care that they can at a time of global pandemic—when they are grossly underprepared, oversaturated with patients, and without basic protection and equipment—without fear of legal reprisal, is almost certainly a compelling state interest. Interpreting Executive Order 202.10 to still allow for general negligence litigation against care facilities, and to allow for gross negligence litigation against individual care providers, provides a narrow tailoring which eases concerns for front line workers at a time when that is surely a much-welcomed relief.
Moreover, compensation is still available at the federal level to persons injured by activities related to medical countermeasures against COVID-19 under the Public Readiness and Emergency Preparedness (PREP) Act, per Declaration issued by the Department of Health and Human Services on March 17, 2020. This compensation will be obtained through the Countermeasures Injury Compensation Program and provides an off-setting measure to the Order.
Regardless, Executive Order 202.10 will almost certainly be challenged in Court, and plaintiffs will likely still pursue claims through loopholes in the Order, such as its silence on immunity to hospitals and institutions and through gross negligence claims. Defense attorneys will of course vigorously remind judges and juries of the dire conditions facing healthcare workers during the pandemic, and that care was rendered by those individuals, not institutions.