COVID-19: The Defense Perspective

Post Authored by Teresa Dettloff

The COVID-19 pandemic has introduced challenges for all. Restaurants and retailers have been closed for weeks. Many businesses have laid off or reduced employees’ pay. Some businesses have closed their doors permanently. However, the critical sector impacted by this pandemic is the American healthcare system, and specifically, the hospitals and healthcare workers that are in the throes of addressing an unprecedented healthcare crisis. All hands are on deck at these facilities. They are short on essential medical supplies and placing their personal safety at risk for the benefit of the community at large.

The Governor’s Executive Order 2020-19 provides that healthcare professionals are immune from civil liability for any injury or death alleged to have been caused by any act or omission, which injury or death occurred at a time when they were engaged in the course of rendering assistance to the State by providing health care services in response to the COVID-19 outbreak unless it is established that such injury or death was caused by gross negligence or willful misconduct. Similar protections were extended to healthcare volunteers and healthcare facilities under this Order.

The Executive Order is essential to protecting the interests of healthcare workers in Illinois, especially considering that plaintiffs can seek unlimited damages in medical malpractice suits. Essentially, the order grants immunity to healthcare workers, volunteers, and facilities from ordinary negligence. However, the Executive Order does not grant absolute immunity to healthcare workers and does not abrogate the standard of care. Healthcare workers, volunteers, and facilities are still liable for gross negligence and willful misconduct, which the Order does not define. The Executive Order provides injured plaintiffs with a remedy while protecting the interests of healthcare professionals who are operating under unforeseen conditions. The gray area of “gross negligence” will be the subject of many future dispositive motions in medical malpractice cases filed in response to COVID-19 treatment.

The provisions set forth in the Executive Order are not only critical to protecting healthcare workers in Illinois, but similar initiatives should be adopted in other states. Physicians and other healthcare workers have been asked to perform their jobs and to save lives without essential supplies and with limited resources, compounded by a rapidly growing patient population. Hospitals have become overcrowded and there has been a shortage of equipment, including personal protective equipment and ventilators, to name a few.

Although this example is not synonymous, imagine, as attorneys, if only a certain number of computers in our offices had internet and we had an influx of cases beyond the typical workload of the office. Certainly, over a prolonged period of time, these circumstances would become significant barriers to the operation of a successful business. Healthcare workers face these challenges ten-fold, all while trying to avoid a malpractice lawsuit. This is not a burden that healthcare workers should have to bear when the community at large is relying on them to control and respond to an unseen enemy.

This unprecedented healthcare crisis has burdened our healthcare systems and its workers in a way that far exceeds the inconvenience of rescheduling or postponing depositions. What remains to be seen is the effect the Executive Order will have on the type and quantity of lawsuits filed after the pandemic has subsided.

Already this month, a lawsuit has been filed in Cook County alleging that Wal-Mart, the decedent’s employer, was negligent in failing to take certain preventative measures to ensure that its employees did not become infected with COVID-19, among other allegations. The Complaint specifically references several CDC recommendations that allegedly were not followed. The Complaint also claims damages under the Wrongful Death Act, claiming willful and wanton misconduct in failing to implement a multitude of measures to prevent infection. This development seems to forecast that CDC recommendations may become weaponized. What remains to be seen, however, is where courts will draw the line regarding willful and wanton conduct.

About the Author:

Teresa DetloffTeresa is an associate at Brennan Burtker LLC, focusing her practice on medical malpractice defense. Teresa is a graduate of Loyola University Chicago School of Law, where she served as a lead article editor for the law journal. Teresa currently serves as a member of the advocacy committee for the United Nations Association Chicago chapter.

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