June 29, 2020

Governor J.B. Pritzker last week failed to renew his prior executive orders granting certain health care providers limited immunity from civil liability for Covid-19 deaths and injuries. This means that previously covered providers can be liable for Covid-19 related deaths and injuries that occur on or after June 27, 2020, even absent proof of gross negligence or willful misconduct.

Under Executive Orders 2020-19 and 2020-37, Pritzker had granted certain health care providers immunity from civil liability for Covid-19 related deaths and injuries absent gross negligence or willful misconduct. Our April 2 and May 18 articles detailed the scope of this limited immunity, and addressed issues regarding what services a health care provider had to provide to the state to qualify for such immunity. Plaintiffs' lawyers have already filed cases attacking those executive orders, trying to limit the scope of the grant of limited immunity.

What does this mean for you as a covered health care provider? It means that it's far easier for plaintiffs to sue you and win for Covid-19 related deaths and injuries.

Any deaths or injuries related to Covid-19 that occur after June 26, 2020 stemming from the ordinary negligence – that is, from a provider's failure to meet applicable ordinary standards of care – can lead to liability for the provider. Plaintiffs' lawyers will no longer have to prove that such a provider acted in a grossly negligent manner, or engaged in willful misconduct, which requires either a total disregard for applicable care standards, or intentional acts or failures to act that led to such deaths and injuries.

Providers, of course, have done everything within their power to avoid any level of negligence in caring for their patients and residents during the pandemic, and have done so under extraordinary circumstances, including a lack of PPE, test kits, and constantly changing guidance from the CDC, CMS, and IDPH about how Covid-19 spreads and what constitutes proper infection control standards. The lapse of the executive orders obviously does not alter the standard of care. Rather, the lapse of the executive orders returns the standard of liability to ordinary negligence from one of gross negligence or willful misconduct for deaths and injuries occurring between April 1 and June 26.

But given that so many unknowns remain about Covid-19, and the fact that the country no longer appears to have successfully "flattened the curve," providers will surely ask why the executive orders were not extended. Some providers under no obligation to admit patients or residents who have tested positive may now view the risk of admitting such patients and residents is too great for existing patients, residents, and staff.

Your Much attorneys will keep you advised of court rulings interpreting the scope of the executive orders in cases involving deaths and injuries before June 27.

This article contains material of general interest and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. Under applicable rules of professional conduct, this content may be regarded as attorney advertising.