New Jersey Legislature Passes Bill Providing Criminal and Civil Immunity to Health Care Workers and Hospitals in New Jersey for Medical Treatment Related to the COVID-19 emergency.

Yesterday, the New Jersey Legislature passed a bill that would provide limited immunity to health care workers and hospitals in New Jersey for medical treatment related to the COVID-19 emergency.  The bill does not extend immunity to acts or omissions constituting gross negligence, recklessness, or willful misconduct.

The bill, S2333/A3910, passed both houses overwhelmingly and is now on Governor Murphy’s desk.  A copy of the bill can be accessed here [S2333_l1]

The bill would be retroactive to March 9, 2020, and its protections will be available for COVID-19 related treatment during the state of emergency declared by the Governor.

The bill is intended to protect doctors, nurses and other healthcare providers from malpractice lawsuit for acts or omissions undertaken in good faith for medical treatment provided in response to the COVID-19 pandemic.

It also protects a “health care facility” as defined in N.J.S.A. 26:13-2, which defines a “health care facility” broadly to include, “an ambulatory surgical facility, home health agency, hospice, hospital, infirmary, intermediate care facility, dialysis center, long-term care facility, medical assistance facility, mental health center, paid and volunteer emergency medical services, outpatient facility, public health center, rehabilitation facility, residential treatment facility, skilled nursing facility, and adult day care center.”

The bill is intended to prevent lawsuits stemming from the use of a “scarce critical resource allocation policy” – i.e., decisions about how to use ventilators, intensive care unit beds and other resources that may be in limited supply.

While this bill appears to be a well-intended effort to protect the health care workers and entities working on the front lines to save lives during this pandemic, it is not difficult to see that the bill, as drafted, may be exploited for many loopholes.

Lawsuits will arise over the intended scope of immunity and whether the intended carve out for acts of “gross negligence” will be avoided by alleging that acts which would otherwise be described as ordinary negligence are acts constituting gross negligence.  Lawsuits may also be filed by non-COVID-19 patients who claim to have become infected as a result of negligent infection control measures.  There will also likely be lawsuits against Administrators and Medical Staff Directors for decisions during this time period which impacted the delivery of clinical care which plaintiffs contend are not included with the scope of the immunity.

While the bill was clearly intended to have sweeping, positive effect, like most legislation passed quickly and with little debate, the details of defining the scope of the broad legislative immunity and its exceptions will likely fall on the Courts with potentially inconsistent results.  Lawsuits may also be filed over whether the legislature can lawfully make this immunity apply retroactively to acts of malpractice which have already occurred.  Going forward, understanding and addressing the provisions of this bill is certain to be one more important aspect of the defense of many medical malpractice claims, if it is enacted into law.

We are closely monitoring this bill and all legal developments related to the COVID-19 crisis.  If you have any questions about the bill or how the COVID-19 crisis may impact you or your health care facility, please contact us for a consultation.

For forty years, the lawyers at Dughi, Hewit & Domalewski, P.C., have represented doctors, nurses, and other healthcare professionals, as well as hospitals, nursing homes, and other health care facilities.

If your matter involves medical malpractice or nursing home liability, please contact Herb Kruttschnitt III at hkruttschnitt@dughihewit.com  or Mark A. Petraske at mpetraske@dughihewit.com.  If your matter involves other COVID-19 legal issues or concerns, please contact Craig A. Domalewski at cdomalewski@dughihewit.com.

The information is provided solely for information purposes. It should not be construed as legal advice on any specific matter and is not intended to create an attorney-client relationship. The information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based upon particular circumstances. Each legal matter is unique, and prior results do not guarantee a similar outcome.