While our community has been immunizing from COVID-19, we have been monitoring the COVID-19 immunity law. Retroactive to March 9, 2020, the law immunizes health care professionals and facilities for medical treatment claims related to COVID-19. Immunity remains in effect so long as New Jersey remains in a state of emergency, as determined by the Governor. The law seeks to ensure that all medical personnel are immune from damages so that they will not hesitate to provide much needed care in a challenging environment. The full text of the law can be found here: https://www.njleg.state.nj.us/2020/Bills/S2500/2333_R1.HTM.
Thus far, the law’s true impact remains uncertain. In the legislature, several bills have been proposed since the law’s passing. For example, a bill introduced on August 24, 2020 (AB 4559) aims to end immunity for for-profit health care facilities as of August 31, 2020, despite the fact that the state of emergency has remained. This bill is under review by the Health and Senior Services Committee. It is unknown whether there will be any additional legislative efforts to limit the law’s reach.
There otherwise have been no significant judicial decisions. Lawsuits should be filed later this year, which will challenge the law’s scope and impact. Some of the law’s provisions are concerning. For example, the text of the law withholds immunity for “reckless” conduct. We anticipate, then, that many complaints will allege “recklessness” instead of negligence, solely to avoid this law. The extent this will be permitted is the issue. The law’s text also specifies that immunity applies to care related to COVID-19 only. How closely related is the question. For example, if a patient receives Emergency Room care for a broken arm, but as a result becomes COVID-19 positive, does immunity apply? A simple question not clearly answered by the law’s text. Immunity also may not apply for facilities lacking proof of compliance with state critical resource allocation guidelines. But how strictly must a facility prove compliance with these voluminous guidelines? And if there are challenges to compliance, will the court decide the challenge or will a jury? Important issues, the result of which will either encourage lawsuits or deter them. The critical resource allocation guidelines can be found here: https://nj.gov/health/legal/covid19/FinalAllocationPolicy4.11.20v2%20.pdf.
Our community’s healthcare professionals have continued tirelessly to fight this devastating illness. Parker McCay’s Medical Malpractice Defense COVID-19 Team is readying for the legal battle to realize the full effect of the immunity benefits that were promised to them by New Jersey’s lawmakers.
The content of this post is for informational purposes only and should not be construed as legal advice or legal opinion. You should consult a lawyer concerning your specific situation and any specific legal question you may have.