On April 9, 2020, the Governor of Arizona issued an executive order granting immunity to certain healthcare professionals and organizations providing care services in support of the State’s COVID-19 public health emergency. The immunity given applies to all acts or omissions occurring during the executive order time period, which runs from April 9th-June 30th, unless extended. The term in this executive order, and some orders in other states, begs the question: what about the civil liability exposure for medical care given earlier in the year as the virus broke out?
The healthcare professionals and institutions in Arizona are breathing a huge, collective sigh of relief. The Arizona Department of Health Services reports a total number of COVID-19 cases at 287,605 as of May 27th, with 501 new cases reported on that date. Arizona is a popular place for people to retire with its sunshine and warm weather. ABC news reports that the state is home to 3,100 licensed long-term care facilities, spanning nursing homes, skilled nursing facilities, and group homes for adults and children. Nearly 80% of the COVID-19 deaths in Arizona are people over 65.
On May 21st, Arizona officials announced initial coronavirus testing will start at 147 long-term care facilities – all of which are skilled nursing facilities, a category that is only a small percentage of the total long-term care facilities in the state. With AZ being one of the first states to reopen and the high density of nursing homes, healthcare professionals and institutions will likely be busy giving care for the COVID-19 virus for a while. Thus, it seems likely the executive order will need to be extended.
Here are the key provisions of the Executive Order:
Presumption of Good Faith and Immunity for Healthcare Professionals
Section one of the Order states that an Arizona healthcare professional licensed under Chapters 13, 15, 17, 18, 25 and 35 of A.R.S Title 32, will be presumed to have acted in good faith in providing medical services to support the public health emergency and immune from civil liability. Volunteer health professionals registered and recruited by the Advanced Registration of Volunteer Health Professionals for the emergency have the same presumption of good faith and immunity protections.
Emergency medical care technicians, licensed under A.R.S. Title 36, Chapter 21.1, also got the presumption of good faith and civil liability immunity in the Order.
Healthcare Institutions: Immunity, but No Good Faith Presumption
The Order grants immunity to healthcare institutions licensed pursuant to A.R.S Title 36, Chapter 4, and entities operating modular field treatment facilities or other licensed or unlicensed site designated for use by state public health authorities or an emergency medical care technician for use in the COVID-19 crisis.
The civil liability immunity is for the acts or omissions done in good faith by the entity’s agents, officers, employees, representatives, or volunteers. However, neither healthcare institutions nor entities operating modular field treatment facilities received the presumption of good faith protection. These organizations will have to prove that they provided medical services in good faith, relying on state-approved protocols for the COVID-19 crisis.
No Immunity for Gross, Reckless or Willful Misconduct
The immunity protections do not apply to the acts or omissions by any of the persons stipulated in the Order that constitute “gross negligence or reckless or willful misconduct including, but not limited to, the healthcare professional volunteer or other individual rendering medical care services under the influence of alcohol or an intoxicating drug.”