Governor’s Executive Order 60 Clarifies Certain Immunity from Liability Available to Health Care Providers during COVID-19 Public Health Emergency

Governor Ralph Northam issued Executive Order 60 (“EO 60”) on April 28, 2020, with the intent to clarify certain statutory grants of immunity to health care providers from liability for injuries or deaths that occur during the provider’s response to the COVID-19 public health emergency. Unlike other Executive Orders where the Governor has invoked certain executive powers, EO 60 provides an interpretation of two Virginia statutes that provide for some immunity to health care providers during “disasters,” and clarifies that COVID-19 is a “disaster” under the meaning of these statutes.

In recognition of the current public health emergency’s strain on the availability and provision of health care services, equipment, and personnel, EO 60 seeks to clarify that statutory limited immunity is available to health care providers who may be required to make difficult decisions to allocate resources or provide care in a different manner that might lead to unintended consequences for patients. EO 60 is effective until the expiration of Executive Order 51, unless sooner amended or rescinded. The full executive order is available here.

Clarification of Statutory Immunity Granted to Health Care Providers during Disaster

Virginia Code § 8.01-225.01 offers health care providers responding to a “disaster” immunity from civil liability for any injury or wrongful death arising from “abandonment by such health care provider of any person to whom such health care provider owes a duty to provide health care” when a state or emergency has been declared and the provider was unable to provide the requisite health care as a result of the provider’s response to the disaster. Virginia Code § 8.01-225.02 further provides immunity from civil liability to health care providers responding to a “disaster” for any injury or wrongful death arising from the delivery or withholding of heath care when a state of emergency has been declared and the emergency and subsequent conditions caused a lack of resources rendering the provider unable to provide the level or manner of care that otherwise would have been required and resulted in the injury or death at issue. Neither provision allows for immunity in instances where the health care provider acted with gross negligence or willful misconduct.

Governor Northam’s Executive Order interprets these provisions as demonstrating the General Assembly’s intent to afford immunity from certain liability to health care providers providing care during circumstances such as the COVID-19 pandemic. EO 60 expressly declares that COVID-19 constitutes a “disaster” under the statutory language of these provisions and references Executive Order 51, in which the Governor declared a state of emergency in response to the COVID-19 pandemic.

EO 60 interprets the statutory language requiring the health care provider to be “responding to a disaster.” Responding to a disaster includes, among other things, the temporary withholding of the provision of procedures, consultations, or surgeries performed in an inpatient or outpatient surgical hospital, free-standing emergency department or endoscopy center, physicians’ office, or dental, orthodontic, oral surgeon, or endodontic offices that require PPE, the delay of which was not anticipated to cause harm to the patient by negatively affecting the patient’s health outcomes or leading to disability or death. Thus, the temporary rescheduling or postponement of annual visits, elective, or non-emergency procedures and surgeries in situations where the patient is unlikely to be negatively affected is an appropriate response to the COVID-19 public health emergency.

EO 60 also clarifies the Governor’s understanding of the meaning of “emergency and subsequent conditions” that “caused a lack of resources, attributable to the disaster, rendering the healthcare provider unable to provide the level or manner of care that otherwise would have been required in the absence of the emergency.” EO 60 offers the following non-comprehensive examples of a “lack of resources” that may affect the level or manner of care provided to patients:

• Insufficient availability of PPE, ventilators, or other drugs, blood products, supplies, or equipment;
• Insufficient availability of trained staff;
• Having licensed healthcare professionals deliver care that, while included in the scope of their licensure, exceeds the scope of their credentials at the hospital or other health care facility at which they deliver services, or exceeds the scope of services that they normally provide;
• Implementation or execution of triage protocols or scarce resource allocation policies necessitated by healthcare provider declaration of crisis standards of care; and
• Using supplies or equipment in innovative ways that are different from the way that these supplies and equipment are normally used.

EO 60 expressly contemplates that providers might need to use a single ventilator for multiple patients at the same time, reuse PPE, or withhold healthcare services in certain situations. While these measures are unconventional, the COVID-19 emergency may make such measures necessary in some circumstances. EO 60 clarifies that health care providers will receive immunity from liability for any injury or wrongful death stemming from these practices. The Executive Order clarifies that it is not intended to waive or supersede any other liability protections that might be available to health care providers.

Practical Implications and Steps that Providers Can Take to Support Immunity from Liability

While EO 60 demonstrates the Governor’s recognition of a statute that could shield from some liability health care providers responding and providing care during the COVID-19 public health emergency, the statutory immunity does not extend to actions in which there was gross negligence or willful misconduct. Thus, providers should take care to carefully document instances in which they were unable to provide the normal level or manner of care due to a lack of resources or where they withheld treatment or care in response to the disaster.

For instance, providers who are required to reuse PPE due to a shortage in supplies, especially in surgical situations, likely should document such fact to provide support for the reuse of the PPE and avoid liability for any post-surgical infections. Any steps taken to sanitize or disinfect PPE between uses should be properly followed and documented. In instances where a provider has postponed or rescheduled routine procedures or surgeries, the provider should document the need to postpone and confirm that the delay is unlikely to cause any harm or injury to the patient. A provider could also send a written policy communicating the need to postpone annual check-ups or elective procedures in response to COVID-19 to existing patients.

Some providers have had to be more creative in providing care and treatment to patients through telehealth or providing care to a patient in their home, car, or other atypical location. Providers should document the justification for such care, as well as any steps taken to ensure the patient’s safety.

In response to the increased need for staffing solutions, providers have been authorized to utilize staff with less training, such as residents, interns, and fourth year medical students who have not been fully licensed. The provider may consider implementing a policy for providing training and an onboarding process for these individuals and including documentation of such training in the individual’s credentialing records as confirmation.

While the Executive Order does not go so far as to require providers to implement “crisis standards of care,” it does give providers the option to do so if necessary. In situations where a provider believes that the scarcity of resources or staff will require a plan for allocating these resources, a temporary policy guiding individual practitioners in making those decisions on how to allocate resources will further support immunity and show that decisions were made uniformly and in good faith. Providers who have implemented general sanitary and infection control procedures in relation to PPE or equipment used for more than one patient should prepare a written policy and confirm that staff are following sanitizing procedures.

Conclusion

EO 60 provides some additional assurance to health care providers of statutory protections; however, it remains unclear what legal authority trial courts asked to enforce the statutory liability protections will give to EO 60, and if the Governor’s interpretation of the statutory language will receive deference. Nevertheless, during the pandemic, health care providers are likely well-served to establish policies, procedures, and documentation practices designed to help establish the availability of immunity. Note that Virginia law neither classifies assisted living facilities nor certain professionals serving patients as “health care providers” and such residences and persons do not benefit from EO 60.

Providers are implementing new measures and responding daily to the unique challenges that have arisen from COVID-19. While providers will be under increased strain in caring for patients and preventing the spread of the virus, documentation continues to be a priority and will support providers in relying on the immunity provisions set forth in EO 60 in response to any future claims of liability. Providers should at all times strive to provide the most appropriate care, but any situations in which standards of care were unable to be met due to a lack of resources or for other reasons related to the provider’s response to the public health emergency should be clearly documented to defend against any future allegations of gross negligence or willful misconduct.

Should you, your practice, or your business have any questions about the implications of this Executive Order, please contact Peter Mellette, Harrison Gibbs, Elizabeth Dahl Coleman, or Scott Daisley at Mellette PC.

This client advisory is for general educational purposes only and does not cover every provision of the Executive Order. It is not intended to provide legal advice specific to any situation you may have. Individuals desiring legal advice should consult legal counsel for up-to-date and fact-specific advice.