COVID’s toll on health care

Executive order limits possible med-mal lawsuits

Nev's Health Law

Neville M. Bilimoria

Neville M. Bilimoria is a partner in the health law practice group, in the Chicago office of Duane Morris.
NMBilimoria@duanemorris.com

If we were in a true war, we would never send our soldiers to the front lines without proper equipment: helmet, firearms and other support. However, with the speedy onset of the COVID-19 pandemic, that seems to be exactly what is happening with frontline healthcare workers, including physicians, nurses and support staff being requested to treat COVID-19 patients in hospitals and nursing homes across the country. It all, of course, stems from a shortage of proper personal protective equipment (“PPE”), not to mention adequate staff or even conditions to properly quarantine and deal with the onslaught of patients who have contracted COVID-19, a number which rises exponentially as days go by.

On April 1, in an attempt to assist frontline workers, Governor J.B. Pritzker issued Executive Order 2020-19 granting civil immunity to “health care providers” under the Illinois Emergency Management Agency Act against civil liability for any injury or death that occurs while they provide health care services in response to the COVID-19 pandemic. The order does not provide immunity if the provider acts in a grossly negligent manner or engages in willful misconduct.

But the order covers hospitals, skilled and intermediate care nursing facilities under the Nursing Home Care Act, skilled and intermediate facilities under the ID/DD Community Care Act, skilled mental health rehabilitation facilities, kidney disease treatment centers, emergency medical service providers, outpatient surgery centers and institutions that provide major medical diagnostic equipment, among others. The order also covers employees and volunteer workers at such health care facilities.

Current discombobulation

The order was needed because what the public is not focused on is the mess COVID-19 is making in the healthcare system. Our modern healthcare system has never seen such a shortage of equipment or the shortage of the necessary armamentarium to deal with this type of widespread public health crisis. But with this pandemic, the response to COVID-19 has been a hodgepodge of government healthcare measures trying to keep up with the virus and its path of destruction.

The government response to COVID-19 has been various pieces of legislation, relaxed Centers for Medicare and Medicaid Services (“CMS,”) healthcare telehealth reimbursement rules to increase access to healthcare, relaxed guidelines and rules for managed care organization reimbursement to providers seeking to increase access to healthcare, and support from Medicaid programs to further assist. However, hospitals and nursing homes are still taking the brunt of the pandemic, expending large amounts of money to meet the needs and with little resources to do so.

Government officials are also struggling to see that, although a nursing facility may be designated a “nursing home,” that doesn’t automatically mean a nursing facility is equipped to care for COVID-19 patients. What we have seen with many of our health care clients is that state and county public health officials often assume nursing homes have infectious disease protocols and can deal with COVID-19. However, COVID-19 is much different than other types of infectious diseases, as we have seen.

The main issue for nursing homes is they may have adequate protocols and the necessary PPE today to deal with one COVID-19 resident, but dealing with that same resident the next week when PPE runs out, or when other residents and staff become infected, all leads to a recipe for disaster in our nursing homes around the country.

One only has to look at what happened at the Life Care Center of Kirkland (“Life Care”) nursing home in Washington state in February and March, which was one of the first nursing home outbreaks of the pandemic, resulting in 37 lives lost and 129 infections of both residents and staff. On April 2, CMS issued a fine of $611,000 against Life Care for failure to have proper measures in place to deal with the pandemic during this first U.S. nursing home outbreak at a time when few knew of the dire effects of the virus. Even CMS’ fine seems an unfair slap in the face against a facility that has lost so much, at a time when it was doing the best it could to care for its residents with the limited knowledge and supplies available render the care needed.

Necessary relief in sight?

Amidst this mess, Governor Pritzker’s executive order is unprecedented, seeking to stave off what would possibly be a cataclysmic breeding ground for plaintiffs’ attorneys seeking to bring medical malpractice actions against hospitals, nursing homes and physicians amidst this pandemic. After all, what better recipe for a malpractice lawsuit than healthcare providers providing round-the-clock care, oftentimes ill-equipped to do so, against a virus we are still learning about, with the result being infection or death due to the lack of resources?

It is certainly possible that after our country and our good state of Illinois get over this pandemic, there may be challenges to the governor’s civil immunity executive order. But hopefully, plaintiffs around the country will realize this pandemic has caused so much disruption in healthcare and that is hard to hold healthcare providers liable for trying to do the right thing in a storm of absent resources to properly treat COVID-19. Time will tell if Pritzker’s needed and well-intentioned executive order will stand up to scrutiny.