April 2, 2020

Illinois Governor J.B. Pritzker issued an executive order on April 1 granting "health care providers" under the Illinois Emergency Management Agency Act immunity from civil liability for any injury or death that occurs while they provide health care services in response to the COVID-19 outbreak, unless the provider acts in a grossly negligent manner or engages in willful misconduct.

No, this is not an April Fool's joke.

The governor's Executive Order 2020-19, authorized by the Illinois Emergency Management Agency Act, covers hospitals, skilled and intermediate care nursing facilities under the Nursing Home Care Act, skilled and intermediate facilities under the ID/DD Community Care Act, skilled mental health rehabilitation facilities, kidney disease treatment centers, emergency medical service providers, outpatient surgery centers, and institutions that provide major medical diagnostic equipment, among others.

The executive order also covers employees and volunteer workers at such health care facilities.

The only questions about the scope of the executive order's grant of civil immunity arise from the language of the Illinois Emergency Management Agency Act, and from the language of the executive order itself.

Section 21(b) of the Act says that all health care facilities will be immune from civil liability for any injury or death allegedly caused "in the performance of a contract with and under the direction of the state or any political subdivision thereof." And the executive order grants such immunity if the health care facility or its employees engaged in rendering "assistance to the State by providing health care services in response to the COVID-19 outbreak."

What "contract" must a health care provider or its employees have with the state to be covered by the executive order? Is a Medicaid contract enough? Is the immunity limited to the treatment of a COVID-19 positive patient or resident, or does it extend to all treatment of all patients and residents during the COVID-19 outbreak?

Our best interpretation of the Act and the intent of the executive order is that health care providers and employees have immunity from civil liability in treating COVID-19 patients and residents, and from such liability if other patients or residents contract COVID-19, as long as the health care facility and its employees were not grossly negligent or did not engage in willful misconduct.

We will try to obtain clarification from the governor's office to confirm our interpretation. Watch this space for updates.

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.