On May 2, 2020, the General Assembly ratified Senate Bill 704: the COVID-19 Recovery Act, and on May 4, 2020, Governor Cooper signed it into law.
North Carolina’s COVID-19 Recovery Act contains a number of provisions in its 70 pages, including several provisions dealing with limitations on civil liability for health care workers, essential businesses, and emergency response entities (which includes manufacturers of Personal Protective Equipment (PPE) and ventilators). This article will focus on the protections afforded by the Act for health care services. You can read more about the protections afforded by the Act for essential businesses in my colleague Stephanie Poley’s article.
Liability Protection for Health Care Services & Providers: Who is Covered?
Section 3D.7(a) of the COVID-19 Recovery Act amends Chapter 90 of the N.C. General Statutes by adding a new Article known as the “Emergency or Disaster Treatment Protection Act.” This legislation provides significant liability protection for health care facilities and providers “that may result from treatment of individuals during the COVID-19 public health emergency under conditions resulting from circumstances associated with the COVID-19 public health emergency.”
What Health Care Entities Are Protected?
Health Care Facilities § 90‑21.132(6)
- Any entity licensed pursuant to Chapter 122C, 131D, or 131E of the General Statutes or Article 64 of Chapter 58 of the General Statutes, and any clinical laboratory certified under the federal Clinical Laboratory Improvement Amendments in section 353 of the Public Health Service Act (42 U.S.C. § 263a).
Health Care Providers § 90‑21.132(7)
- An individual who is licensed, certified, or otherwise authorized under Chapter 90 or 90B of the General Statutes to provide health care services in the ordinary course of business or practice of a profession or in an approved education or training program.
- A health care facility where health care services are provided to patients, residents, or others to whom such services are provided as allowed by law.
- Individuals licensed under Chapter 90 of the General Statutes or practicing under a waiver in accordance with G.S. 90‑12.5.
- Any emergency medical services personnel as defined in G.S. 131E‑155(7).
- Any individual providing health care services within the scope of authority permitted by a COVID‑19 emergency rule.
- Any individual who is employed as a health care facility administrator, executive, supervisor, board member, trustee, or other person in a managerial position or comparable role at a health care facility.
- An agent or employee of a health care facility that is licensed, certified, or otherwise authorized to provide health care services.
- An officer or director of a health care facility.
- An agent or employee of a health care provider who is licensed, certified, or otherwise authorized to provide health care services.
What Health Care Services Are Protected? § 90‑21.132(8)
The Act includes treatment, clinical direction, supervision, management, or administrative or corporate service, provided by a health care facility or health care provider during the period of the COVID-19 emergency declaration. It’s important to note the time limit of the limited immunity: the treatment must occur during the period of the emergency declaration. Included health care services would include any of the following:
- Testing, diagnosis, or treatment of a health condition, illness, injury or disease related to a confirmed or suspected case of COVID-19.
- Dispensing drugs, medical devices, medical appliances, or medical goods for the treatment of a health condition, illness, injury, or disease related to a confirmed or suspected case of COVID-19.
- Providing care to any other individual who presents or otherwise seeks care during the period of the COVID-19 emergency declaration.
Volunteer organizations, including any medical organization, company, or institution that has made its facility or facilities available to support the State’s response and activities under the COVID‑19 emergency declaration and in accordance with any applicable COVID‑19 emergency rule are also protected. § 90‑21.132(9)
Extent of the Immunity § 90‑21.133
The immunity is not absolute. First, it is only for civil liability (such as a suit for money damages for economic and non-economic harms). It does not preclude employees from pursuing remedies under North Carolina’s Workers’ Compensation Act. It also does not protect health care providers from government, regulatory, or criminal actions.
In order to be protected by the limited civil immunity provided for by the Act, two critical elements must be met:
- the health care services must have been directly or indirectly impacted by decisions made as a result of COVID-19, and
- the services must have been provided in good faith.
As long as those provisions are met, then a health care provider or facility should be protected from lawsuits for money damages alleged to have resulted from care or omissions provided during the COVID-19 emergency declaration. The immunity from civil liability does not apply if the harms or damages were caused by gross negligence, reckless misconduct, or intentional infliction of harm by a health care facility or provider. The Act specifically provides that a resource or staffing shortage is not to be considered gross negligence, reckless misconduct, or intentional infliction of harm.
Remember also that the immunity only applies to acts or omissions during North Carolina’s emergency declaration regardless of when the claim is filed or pursued. Governor Cooper first declared an emergency due to COVID-19 in Executive Order No. 116 on March 10, 2020. The immunity will run from that date through any extension of the declaration. At this time, there is no plan to terminate or rescind such emergency declaration.
North Carolina health care providers and facilities are protected from civil claims arising from acts or omissions that were impacted by COVID-19, and that were made in good faith so long as they were made during the time period of the emergency declaration. This immunity is not absolute, but it is a good start to protecting our front line workers and health care heroes during this unprecedented time.
Of note, the immunity afforded is going to be a fact dependent analysis in determining whether a health care provider or health care facility’s acts or alleged omissions fall under the immunity provisions. Where possible, providers and facilities should document any and all impacts on operations due to COVID-19. This should include, but is not limited to, their efforts to respond with new or updated policies and procedures adhering to CDC guidelines, and ongoing training of staff and employees on new protocols to help isolate and prevent the spread of COVID-19. The immunity will likely not result in an automatic dismissal of a lawsuit. The provider or facility will have the burden of proof to show the immunity applies to the care they provided that is in question.