Executive Order 202.10 was issued by Governor Andrew Cuomo as part of an effort to increase the capacities of the health care system to deal with the increased patient load caused by Covid-19 crisis.
There are various facets to this Executive Order, but one that has piqued the interest of many medical practitioners is a provision that provides immunity from civil liability to physicians, P.A.’s and N.P.’s responding to the Covid-19 crisis. This immunity was further refined and codified in an amendment to the Public Health Law, to wit: Article 30-D, passed as part of the 2020 State budget.
Section 3082 of that newly enacted Article 30-D provides 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 occurring in the course of arranging for or providing health care services during the Covid-19 emergency declaration. The statute expands the immunity of the Executive Order to include criminal conduct. The statute also clarifies that the immunity applies not only to immunity from liability for injury or death, but immunity from any damage that flows from the harm, including both economic and non-economic damages. Economic damages consist of items such as lost wages and medical expenses. Non-economic damages are also known as pain and suffering.
Executive Order 202.10 also grants an immunity from liability for failure to comply with mandatory record keeping requirements. This immunity applies to records generated in association with the State’s response to the Covid-19 crisis.
Some practitioners have asked us for guidance on how to proceed in the event they are required (or decide voluntarily) to provide Covid-19 related services as part of the State’s response. Specifically, they want advice on how to protect themselves from liability when doing so. In response, we provide the following analysis of the new immunity provisions of Executive Order 202.10 and Public Health Law Article 30-D.
It is important to understand that the Executive Order and the amendment to the Public Health Law were prepared hastily in the midst of a crisis. They have not been tested in, nor have they been interpreted by the Courts (which are coincidentally closed except for essential matters). So there is no case precedent to rely upon for guidance. Therefore, one must look to the ordinary meaning of the text of the immunity provisions while, at the same time analogizing to similar legal mandates.
Over time, as cases involving the immunity provisions find their way into the Courts, the Courts will retrospectively interpret what they mean. Until then, it would be prudent for the medical practitioner to interpret them in the most defensive manner possible.
Consistent with the concerns mentioned above, the first approach for the medical practitioner is to conduct oneself as if the immunities will be fraught with exceptions. One must anticipate that liability may still attach in some Covid-19 situations.
The Executive Order provides two types of immunity: (1) civil immunity from liability for injury or death; and (2) absolute immunity from record-keeping requirements. The immunity from liability for injury or death granted by the Executive Order was expanded by the legislature’s amendment to the PHL such that practitioners now have both civil and criminal immunity, as well as immunity from all types of damages claims.
It is worth noting that the record-keeping immunity of the Executive Order is labeled as an “absolute” immunity, yet the immunity from liability for injury or death is not. The absence of the term “absolute” from the first immunity would seem to imply that the immunity from liability for injury or death is less protective than the record-keeping immunity. Yet, even the so-called “absolute” immunity from record-keeping requirements contains additional qualifying phrases. For example, the practitioner must act “reasonably and in good faith” in order to avail one-self of the “absolute” immunity. Also, the “absolute” immunity is only available “to the extent necessary for health care providers to perform tasks as may be necessary to respond to the Covid-19 outbreak”.
These qualifiers should serve as further warning that the practitioner needs to proceed cautiously. The practitioner should not assume that everything he or she does in the course of a Covid-19 emergency is subject to immunity.
The Executive Order indicated that the immunities would only apply if the care rendered, or the record-keeping performed was to address a Covid-19 related treatment issue. But this raised a question of whether the immunities would still apply if the practitioner believed he is treating a Covid-19 patient who then turns out to test negative for the Covid-19 virus.
The amendment to the PHL resolved this question by providing that the immunity also applies to the care of any individual who presents during the period of the COVID-19 emergency declaration, so long as the act or omission under scrutiny occurs in the course of arranging for or providing health care services, and the treatment of the individual is impacted by the practitioner’s decisions or activities in response to, or as a result of the COVID-19 outbreak and in support of the State’s directives.
The Executive Order provision granting immunity from liability for injury or death contains both a prerequisite and an exception. The prerequisite is that the protected act or omission must have been done “in the course of providing medical services in support of the State’s response to the Covid-19 outbreak”. The exception is that the immunity will not apply to “gross negligence”. PHL Article 30-D contains a somewhat similar exception to the immunity. A practitioner might then wonder “what constitutes gross negligence?”
To answer that question we can look to other legal authority that has defined the term “gross negligence”. A closely analogous statute is NY Public Health Law Section 3000-a, or the so-called “Good Samaritan Law”. The principles underlying the Good Samaritan Law are very similar to those underlying the Executive Order. Both were designed to give physicians an incentive to lend a hand in an emergency (or at least eliminate a dis-incentive by removing the fear of being held liable for injury if they do).
Under PHL Section 3000-a, gross negligence is considered a form of negligence that is egregious or conspicuously bad; it is negligent conduct which has the additional aggravating factor of displaying a reckless disregard for the rights of the patient, or smacks of intentional wrongdoing. For the most part, if the practitioner uses his best judgment and acts in good faith, his conduct will likely not be found to constitute gross negligence.
Article 30-D, Section 3082(2) of the Public Health Law clarifies and seemingly expands the exception by further enumerating the types of acts or omissions to which the immunity would not apply. Under the statute, the practitioner will not get immunity for: willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm. It then carves out an exception to these exceptions by excluding any acts, omissions or decisions resulting from a resource or staffing shortage. By including this exception to the exception, the legislature thus broadened the immunity provided by the Executive Order such that even a potentially intentional act could be immune if it came about as the result of a Covid-19 induced shortage.
The more troublesome question is (as mentioned above) when is the conduct considered part of the State’s response to the Covid-19 outbreak, and when is it not? In some situations this may present a significant dilemma for the medical practitioner.
Article 30-D of the PHL includes an attempt by the legislature to give more clarity to this issue by providing definitions of relevant terminology. PHL Section 3081 defines the term “health care services” subject to the immunity to mean services that relate to:
(a) the diagnosis, prevention, or treatment of COVID-19;
(b) the assessment or care of an individual with a confirmed or suspected case of COVID-19; or
(c) the care of any other individual who presents at a health care facility or to a health care professional during the period of the COVID-19 emergency declaration.
Subparagraph (c) is clearly intended to include services rendered to non-Covid-19 patients, but whose treatment has become complicated by the shortages of staffing and equipment due to the Covid-19 crisis. As to the non-Covid-19 patients, there still must be a Covid-19 nexus to the treatment in question for immunity to apply, and the treatment must occur during the time of the emergency declaration.
The best practice is to conduct one-self as if there is NO IMMUNITY and act accordingly. This requires the medical practitioner to be cognizant of the typical tools utilized for self-protection. Perhaps the most important one is documentation.
The medical practitioner is advised to act as if there is no immunity for documentation deficiencies and to be especially vigilant with his documentation. This is even more important when the practitioner is called upon to render services that are outside of his specialty because of a shortage of available specialists.
Remember that the conduct in question will likely be judged many months or years later when the chaos of the Covid-19 crisis is a distant memory. The practitioner’s note should memorialize what was happening and why the practitioner was in the situation he was in.
If the practitioner is being asked to render care in an area outside of his specialty, the note should reflect the efforts the practitioner made to locate the appropriate specialist. The note should further indicate that no specialist was available either in person or by phone and that time was of the essence to act. It is not enough to assume that care rendered as part of the Covid-19 crisis is an emergency. Instead, the note should reflect why this particular patient’s situation was an emergency due to the Covid-19 crisis. Moreover, the practitioner should specifically reference that the care rendered was part of the State’s response to the Covid-19 outbreak. This may seem like a lot of extra charting, but it will pay off in the long run.
Ironically, the Governor intended to provide immunity from mandated record-keeping requirements so that the practitioners could focus on expedient care and not be saddled with record-keeping responsibilities. But this is a trap for the unwary. The records may someday be the primary source for invoking the protection of the immunity from liability.
These self-defensive concepts apply to Physicians, Nurse Practitioners and Physician Assistants alike. So all should act accordingly. However, there is an additional protection in Executive Order 202.10 for P.A.’s and N.P.’s which relieves them of any liability for acting without supervision by a physician (in the case of a P.A.) or without collaborating with a physician (in the case of an N.P). This provision also provides a certain degree of protection to the physician who employs P.A.’s and N.P.’s
The Executive Order suspends the provisions of 10 NYCRR Section 94.2 which would make a physician medically responsible for the act of the P.A. and suspends 8 NYCRR 64.5 (incorrectly referred to in the Executive Order as 10 NYCRR 64.5) as to Nurse Practitioners.
Despite the fact that such protections are offered, it is advisable for physician employers of P.A.’s and N.P.’s to instruct the P.A. or N.P. to confer with, or attempt to confer with the appropriate specialist, and to document that they did so, or tried to do so but could not due to the exigencies of the circumstances caused by Covid-19. Again, in order for the protections to apply, the acts in question must pertain to the State’s response to the Covid-19 crisis, so the documentation should reflect this.
A final word regarding the immunity is worth mentioning. It must be understood that an immunity from liability is not an immunity from being sued. The practitioner will still be sued and then the burden will be on practitioner and his attorney to establish that the immunity applies. Sometimes this can be done early in the suit by motion, but more likely the Court will allow the plaintiff’s attorney the opportunity for discovery on the issue before a motion to dismiss is permitted.
Since the practitioner will end up in court either way, it is important to start thinking defensively now so that one can take advantage of the immunity later.