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Health Care Facility Liability During COVID-19

Chicago Lawyers Helping Patients Harmed by Medical Malpractice

When you visit your doctor, you trust that you will be cared for well. Unfortunately, doctors and other health care providers do make mistakes. Ordinarily, the method for holding health care providers accountable for mistakes that amounted to deviations in the standard of care was to bring a medical malpractice lawsuit for damages. However, in April 2020, Governor J. B. Pritzker issued an executive order granting immunity from civil liability to health care providers and facilities in response to the COVID-19 outbreak, except under certain circumstances. If you were recently harmed by medical malpractice, your rights may be affected by changes to health care facility liability during COVID-19. To discuss your circumstances, contact the Chicago medical malpractice attorneys at Katz, Friedman, Eisenstein, Johnson, Bareck & Bertuca for a consultation.

Health Care Facility Liability During COVID-19

In order to establish a medical malpractice claim under ordinary circumstances not related to COVID-19, a patient needs to show: (1) there was a doctor-patient relationship giving rise to a professional standard of care, (2) deviation from the professional standard of care, (3) causation, and (4) damages. However, the standards are more stringent now for medical malpractice in connection with COVID-19.

The governor’s April Executive Order 2020-19, issued under the Illinois Emergency Management Agency Act, immunized health care facilities, along with health care volunteers and health care professionals from civil suit for injuries or deaths caused by acts or omissions in the course of health care services provided in response to the COVID-19 pandemic, except under certain circumstances. The Executive Order required all health care facilities, health care professionals and health care volunteers to render assistance in support of Illinois’ response to the pandemic, and immunity was extended in relation to the rendering of assistance. However, the immunity wasn’t limited to malpractice arising out of a failure to treat, diagnose or care for a patient with a COVID-19 diagnosis. Rather, immunity extended to any injury or death that occurs when the facility or its professionals were in the course of “rendering assistance.”

However, there is no immunity under the Executive Order for health care facilities and health care professionals whose gross negligence or willful misconduct engenders injury or death while rendering assistance during COVID-19.

Health care volunteers, along with nursing and medical students who are not licensed, were immunized from civil liability for injuries or deaths caused while helping the government to respond to COVID-19, except where the injury or death arose out of the volunteer’s “willful misconduct.”

Executive Order 2020-37

On May 13, 2020 the Governor issued Executive Order 2020-37, which provided updated public health guidance. The Order directed all providers to render assistance and specified that providers need to be rendering assistance in support of the governmental response to the pandemic to be eligible for immunity from civil liability. In other words, medical facilities must follow all guidance in the Executive Orders for rendering assistance in order to be eligible for immunity.

Under Executive Order 2020-37, among other things, in order to be immune, health care facilities “rendering assistance” need to increase the number of beds, preserve and properly employ personal protective equipment, conduct widespread testing, and take needed steps to provide medical care to patients with COVID-19 and to stop further transmission of COVID-19. Health care facilities must also conduct widespread testing of residents and widespread and regular testing of staff for COVID-19 and accept COVID-19 patients who were transferred or discharged from other facilities or hospitals.

Health care facilities are immune from civil liability for injuries and deaths connected to diagnosis, treatment or transmission of COVID-19 that is alleged to be caused by the facility or a professional’s act or omission if the injury or death happened during a time when the facility or professional was rendering assistance by providing health care services consistent with current guidance issued from the Illinois Department of Public Health (IDPH). The Order provides this immunity is inapplicable if it’s shown there was gross negligence or willful misconduct. An experienced lawyer can review the facts of your case and discuss whether the new immunity provisions will limit your recovery.

Gross Negligence or Misconduct

In ordinary situations, you’d need to show it was more likely than not, your doctor or health care facility deviated from the professional standard of care and failed to act as a reasonable safe provider would have under similar circumstances. Gross negligence and willful misconduct are much higher standards. This is a new area of law, so it’s not certain how courts in Chicago will interpret the new standards of “gross negligence” and “willful misconduct” in the context of medical malpractice lawsuits. Gross negligence has applied to situations involving a course of action that shows a conscious disregard for or utter indifference to someone’s safety and the safety of others. Willful or wanton misconduct has applied to reckless or intentionally tortious conduct behavior that causes physical harm to a person.

Consult with an Experienced Medical Malpractice Attorney in Chicago

Medical malpractice lawsuits are challenging under ordinary circumstances, and they are even more so as a result of the new immunity provisions for rendering assistance during the pandemic. If you are concerned about health care facility liability during COVID-19, you should talk over your situation with the lawyers at Katz, Friedman, Eisenstein, Johnson, Bareck & Bertuca. We represent patients in Chicago, Rockford, Quincy, Champaign, and Aurora, along with Adams, Winnebago, Sangamon, Cook, and Kane Counties. Contact us at 312-724-5846 or complete our online form.