Posted by Post Authored by Laura Wibberley
On April 1, 2020, Governor J.B. Pritzker issued an executive order granting immunity from civil liability to health care providers and facilities. This immunity extends to any injury or death that occurs while providing health care services in response to the COVID-19 outbreak unless the provider or facility acts in a grossly negligent manner.
Governor Pritzker’s COVID-19 Executive Order No. 17 was issued in response to the unprecedented outbreak of COVID-19. This Executive Order is grounded by power extended to the state governor to respond to “disasters” found under the Illinois Emergency Management Agency Act (“IEMA Act”). See 20 ILCS 3305, et seq. When a disaster in the state of Illinois has been declared, the IEMA Act specifically gives the governor the responsibility of carrying out its provisions, including the ability to “make, amend, and rescind all lawful necessary orders . . . to carry out the provisions of this Act” in the interest of public safety for Illinois citizens. 20 ILCS 3305/6(c)(1). On March 9, 2020, Governor Pritzker declared Illinois was in a state of “disaster” as a result of the COVID-19 pandemic. As such, Pritzker implemented various measures to carry out the provisions of this Act in response to the outbreak.
Governor Pritzker’s Executive Order requires all “Health Care Facilities, Health Care Professionals, and Health Care Volunteers” to render assistance in support of the State’s response to the disaster recognized in the State of Illinois, namely the COVID-19 outbreak. (Governor Pritzker, Executive Order 2020-19, Executive Order in Response to COVID-19, Executive Order No. 17, § 2). The Executive Order requires all health care facilities, not just government health care facilities, to cancel elective procedures and increase the number of beds available for patient care. It also requires personal protective equipment to be preserved, and health care facilities and providers to take other steps necessary to treat patients suffering from the virus. (Id. at § 2). The goal is to create a unified approach among various health care entities to control and conquer the spread of COVID-19.
In conjunction, Governor Pritzker extended immunity to health care providers and facilities ordered to render assistance to those individuals suffering from COVID-19. (Governor Pritzker, Executive Order 2020-19, Executive Order in Response to COVID-19, Executive Order No. 17, §§ 3-6). Specifically, Health Care Facilities, Health Care Professionals, and Health Care Volunteers are “immune from civil liability for any injury or death alleged to have been caused by any act or omission” while they are “engaged in the course of rendering assistance to the State by providing health care services in response to COVID-19 outbreak.” (Id.). Of course, an exception exists for conduct deemed willful or grossly negligent. (Id. at §§ 3-6).
This immunity also stems from the IEMA Act. Section 15 specifically allows the extension of immunity from civil liability to the State and its agents and employees when engaged in any emergency management response. 20 ILCS 3305/15. Exceptions similarly exist in situations involving intentional or willful misconduct. The immunity extends also, in part, to private individuals:
(b) Any private person, firm or corporation and employees and agents of such person, firm or corporation in the performance of a contract with, and under the direction of, the State, or any political subdivision of the State under the provisions of this Act shall not be civilly liable for causing the death of, or injury to, any person or damage to any property except in the event of willful misconduct.
(c) Any private person, firm or corporation, and any employee or agent of such person, firm or corporation, who renders assistance or advice at the request of the State, or any political subdivision of the State under this Act during an actual or impending disaster, shall not be civilly liable for causing the death of, or injury to, any person or damage to any property except in the event of willful misconduct.
20 ILCS 3305/15.
Thus, Governor Pritzker, in accordance with the language of the IEMA, extended immunity to health care facilities and providers along with his directive to provide medical care and treatment to COVID-19 patients.
This immunity broadly extends to “Health Care Facilities,” “Health Care Professionals,” and “Health Care Volunteers.” (Governor Pritzker, Executive Order 2020-19, Executive Order in Response to COVID-19, Executive Order No. 17, § 1, 3-6). The Order defines “Health Care Facilities” as hospitals, long term care nursing facilities, community-integrated living arrangement facilities, skilled mental health rehabilitation facilities, kidney disease treatment centers, emergency medical service providers, outpatient surgery centers, among others. (Id. at § 1). “Health Care Professionals” are also broadly defined and include any licensed or certified health care or emergency services professionals. (Id. at § 1). The Order even extends immunity to volunteers, along with medical or nursing students, providing services in response to the COVID-19 outbreak. (Id. at § 1).
While questions exist as to the specific scope of this Executive Order, as well as the true intent of its application, it is clear that Governor Pritzker intended to protect the health care workers who are on the front lines of this pandemic. This Executive Order remains in effect in the State of Illinois through the remainder of the Gubernatorial Disaster Proclamation, which is currently set to last until April 30, 2020.
About the Author:
Laura Wibberley was recently admitted to practice law in the state of Illinois. She concentrates her practice in the areas of medical malpractice and health care defense. Laura received her J.D. from The John Marshall Law School in 2017, where she graduated Valedictorian and summa cum laude. While in law school, Laura was a student publications editor of the John Marshall Law Review and an associate justice board member of the Moot Court Honor Society. She received the CALI award in Evidence, Civil Procedure, and Contracts. She previously externed with The Honorable Robert E. Gordon of the First District Appellate Court of Illinois where she assisted with the research and drafting of several published opinions. Prior to law school, Laura worked as a senior paralegal for the Chicago Transit Authority in the civil litigation division where she actively participated in over twenty jury trials.