Governor Northam Issues Order on Immunity for Healthcare Providers Responding to COVID-19

By Byrne Legal Group | Issue 09

On April 28, 2020, Virginia Governor Ralph Northam issued Executive Order No. 60 (2020), officially titled “Clarification of Certain Immunity from Liability for Healthcare Providers in Responses to Novel Coronavirus (COVID-19).” While Virginia law already has immunity statutes for emergency times, there was some question as to the extent that these provisions would apply during the COVID-19 crisis. The Governor’s order provides important clarity to these questions.

I. Virginia’s Existing Immunity Statutes

Sections 8.01-225.01 and 8.01-225.02 of the Code of Virginia provide certain immunities from liability for healthcare providers during emergencies. Va. Code § 8.01-225.01 states that during a declared disaster, a health care provider who is “unable to provide the requisite health care to the person to whom he owe[s] such duty of care as a result of the provider’s voluntary or mandatory response to the relevant disaster” is immune from civil liability.

Va. Code § 8.01-225.02 provides civil immunity for “any health care provider who responds to a disaster” when “the emergency and subsequent conditions caused a lack of resources, attributable to the disaster, rendering the health care provider unable to provide the level or manner of care that otherwise would have been required in the absence of the emergency and which resulted in the injury or wrongful death at issue.” Importantly, the immunity provisions of both §§ and only apply in the absence of gross negligence or willful misconduct.

II. Executive Order No. 60’s Clarifications Provided on Immunity Statutes

Taken together, these two statutes can be interpreted to provide rather broad immunity for health care providers during times of emergency. However, before Executive Order No. 60, there were questions as to the meanings of important phrases, such as “responds to a disaster” in § 8.01-225.01. The Governor’s order makes clear that this phrase includes delays in the provision of care such as “procedures, consultations, or surgeries” that were caused by the provider’s adherence to the Governor’s earlier prohibition on elective surgeries. Therefore, if the delay in care unexpectedly leads to a negative outcome and the patient files suit, the provider would have a strong claim for immunity.

The order also helps clarify who is covered by the 8.01-225.01 “delay in care” immunity. It specifically states that procedures which were set to occur in inpatient and outpatient surgical hospitals, free-standing emergency departments, endoscopy centers, physicians’ offices, and dental, orthodontic, oral surgery, or endodontic offices are covered by the immunity provisions of § 8.01-225.01. This language demonstrates that the Order contemplates § 8.01-225.01 providing immunity for a broad range of providers who are forced to cancel important elective procedures such as endoscopies and colonoscopies, or dental procedures such as root canals.

Executive Order No. 60 also sheds light on what § 8.01-225.02’s “lack of resources” phrase means in the context of the COVID-19 crisis. Section 4 of the Order lists 5 specific scenarios in which providers would be afforded immunity for lack of resources:

  1. insufficient availability of supplies including PPE, ventilators, drugs or blood products;
  2. insufficient availability of trained staff;
  3. having licensed healthcare professionals deliver care that would normally be in the scope of their licensure but outside the scope of their credentials or outside the scope of the services they normally provide;
  4. implementation and execution of triage protocols or resource allocation policies necessitated by a “healthcare provider declaration of crisis standards of care”; and
  5. using supplies or equipment innovative ways that are different from the way that these supplies and equipment are normally used.

These specific examples are non-exhaustive, but help show the intended extent of § 8.01-225.02. It is important to note that Virginia law does not currently define “crisis of standard of care.” However, Executive Order No. 60 clearly recognizes that the usual definition of standard of care as what a reasonably prudent practitioner in the same or similar specialty may be impacted by the COVID-19 crisis.

III. Impact of Executive Order No. 60 and Further Possible Action

Perhaps just as importantly as providing the clarifications regarding §§ 8.01-225.01 and 8.01-225.02, Governor Northam’s Order also makes clear the importance of providing providers with assurances during these unprecedented times. As the Order recognizes, “[i]t is in the public interest to afford healthcare providers involved in the delivery of healthcare impacted by COVID-19 with adequate protection from liability for good faith actions or omissions taken in their efforts to combat this health emergency.” This qualification demonstrates that the Governor’s intent is to provide adequate immunity for providers on the front lines of this pandemic.

Executive Order No. 60 does have omissions, however. Most notably, the Governor did not extend the definition of “health care provider” to include assisted living facilities, home health providers, hospice providers, or adult day care providers. These changes will be sought in the upcoming special session of the Virginia legislature, which is likely to be scheduled for summer or fall of 2020.

Should you have any questions about Executive Order No. 60 or risk management during the COVID-19 era, please contact any of the attorneys at the Byrne Legal Group. As a law firm dedicated to providing health care providers with excellent legal representation, we look forward to helping in any way possible.

The information contained in this advisory is for general educational purposes only. It is presented with the understanding that neither the author nor Byrne Legal Group is offering any legal or other professional services. Since the law in many areas is complex and can change rapidly, this information may not apply to a given factual situation and can become outdated. Individuals desiring legal advice should consult legal counsel for up-to-date and fact-specific advice. Under no circumstances will the author or Byrne Legal Group be liable for any direct, indirect, or consequential damages resulting from the use of this material.