The COVID-19 pandemic has had a drastic impact on medical care providers and facilities as they try to contain the spread and treat the virus. Among the difficulties presented was the limited number of trained personnel and staff available to treat the general public. In an effort to supplement the existing workforce within the medical field, on April 1, 2020, Governor Murphy signed Executive Order 112, which eased restrictions for temporary licensure and provided certain protections to those providing COVID-19 treatment during the current emergency.
As a result of Executive Order 112, the New Jersey Division of Consumer Affairs now has the authority to issue temporary licenses to health care professionals that have retired or otherwise allowed their licenses to lapse within the past five years. The Order permits foreign physicians to obtain temporary licensure, assuming they are in good standing within other jurisdictions. The Order further streamlined the temporary licensure process by waiving fees, documentation and continuing education, and, for physicians and physician assistants, by waiving minimum medical malpractice insurance coverage mandates. Additionally, Governor Murphy temporarily eased regulations concerning the scope of oversight required for physician assistants and advanced practice nurses and their ability to prescribe certain medications. Most significantly, the Order granted limited civil immunity for any damages alleged to have been sustained as a result of the provider’s acts or omissions undertaken in good faith in the course of providing health care services in support of the state’s COVID-19 response. The immunity provisions were entered as a temporary measure with the expectation that legislation would be enacted further defining the scope of relief and immunity provided to the health care industry.
The New Jersey legislature quickly responded, unanimously approving Bill S-2333/A-3910, which extended the provisions of Executive Order 112. On April 14, 2020, Governor Murphy signed the bill into law. Under the law, a health care professional shall not be liable for civil damages for injury or death alleged to have been sustained as a result of an act or omission by the healthcare professional in the course of providing medical services during the public health emergency resulting from the outbreak of COVID-19. The legislation also clarified and extended the Executive Order’s immunity to a medical professional’s health care facility and system, to the extent that the individual care provider is immune.
As it stands now, the limited immunity applies to acts or omissions taken in good faith to treat COVID-19 patients and to prevent the spread of COVID-19 during the state of emergency. The non-exhaustive list of activities included is: telemedicine, telehealth, and diagnosing or treating patients outside the normal scope of the health care professional’s license or practice. Immunity does not apply, however, to acts or omissions constituting a crime, actual fraud, actual malice, gross negligence, recklessness or willful misconduct.
Given the potential shortage of ventilators and related medical equipment in the state, the legislature also granted health care facilities and systems immunity regarding the allocation of mechanical ventilators or other scarce medical resources. To obtain such protections, the health care facility or system must adopt a “scarce critical resource allocation policy” consistent with core principles identified by the Commissioner of Health in an executive directive or administrative order.
Although passed unanimously, some legislators expressed concern as to the breadth of immunity granted to health care providers and facility. The Senate acknowledged and responded to those voices in the bill, clarifying that immunities do not extend to services performed by professionals providing services not related to the epidemic:
It has been reported that this bill would grant immunity to all medical doctors and healthcare workers in New Jersey for all inpatient or outpatient procedures or any medical treatment rendered during the timeframe of the COVID-19 emergency. This is not an accurate statement. The enactment of this bill is to ensure that there are no impediments to providing medical treatment related to the COVID 19 emergency and that all medical personnel supporting the COVID-19 response are granted immunity. However, medical care rendered in the ordinary course of medical practice does not provide the granting of immunity. For example, procedures performed by licensed medical professionals in their ordinary course of business, including orthopedic procedures, OB/GYN services, and necessary cardiological procedures. It is not the Legislature’s intent to grant immunity for medical services, treatment and procedures that are unrelated to the COVID 19 emergency.
The law is retroactive to March 9, 2020 and will be in place for the duration of the state of emergency and public health emergency.
A copy of Executive Order 112 is available here.
A copy of the Bill S-2333/A-3910 can be found here.
A copy of New Jersey’s Scarce Critical Resource Allocation Policy can be found here.
Andrew Sayles has broad litigation experience representing clients through New Jersey and New York. He combines a pragmatic approach and proven litigation experience to successfully represent clients in state and federal ...
Lauren Iannaccone’s broad range of experience in complex commercial transactions allows her to respond to significant emergent matters and assist clients efficiently and effectively. Lauren’s litigation experience ...