It is well-established law that when a person acts, he or she must do so without negligence – without breaching a duty he or she owes to others. This well-established law also applies to medical personnel who act to provide medical services to patients. However, New York State has recently granted a qualified immunity to medical personnel treating patients in support of New York State’s response to the COVID-19 outbreak.
Governor Cuomo recently issued Executive Order 202.10, which modifies relevant sections of New York State’s Education Law “to the extent necessary to provide that all physicians, physician assistants, specialist assistants, nurse practitioners, licensed registered professional nurses, and licensed practical nurses shall be immune for civil liability for any injury or death alleged to have been sustained directly as a result of an act or omission by such medical professional in the course of providing medical services in support of the State’s response to the COVID-19 outbreak, unless it is established that such injury or death was caused by the gross negligence of such medical professional….”
This Executive Order granting qualified immunity to medical personnel that are providing medical services in support of New York’s response to the COVID-19 will certainly result in a reduction to the amount of future lawsuits (or, at least, the amount of successful lawsuits) filed against such medical personnel claiming injury or death as the result of the actions and/or omissions of such medical personnel during the course of providing medical services in response to the COVID pandemic. This Executive Order was likely issued, not only to protect medical personnel from civil liability who may be doing everything in their power to provide such medical services in a less than ideal atmosphere with possibly inadequate resources and decreased physician-to-patient ratios, but also to increase the likelihood that retired medical personnel or non-practicing members of the profession may “return to work” to assist their former colleagues addressing this outbreak without fear of exposing themselves to potential liability claims in the future.
Notably, the term “gross negligence” is not defined by the Executive Order and will likely be a term that is litigated in future lawsuits; however, in New York State, the term “gross negligence” is generally interpreted by New York Courts to mean an extreme action inconsistent with the actions of an average, cautious person (and the term is often times interpreted by a Court to mean that the plaintiff must demonstrate some form of intentional misconduct by the alleged wrongdoer). Would it be considered to be “gross negligence” if a physician or licensed practical nurse who demonstrated all of the known symptoms of COVID the morning of providing medical services to patients, but decided to go to the hospital and continue to treat patients and, as a result, caused one or more of those patients to contract COVID? Or, how about if that same physician or licensed practical nurse had been diagnosed with COVID the day prior to providing medical services to patients and caused one or more of those patients to contract COVID? Those questions, or similar questions, may need to be determined in the future by a judge or a jury.
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