Illinois hospitals, nursing homes and other health care facilities responding to the COVID-19 outbreak have been granted some legal protection by the state, potentially shielding them from suffering an outbreak of post-crisis malpractice lawsuits brought by trial lawyers.
On April 1, Illinois Gov. JB Pritzker signed an executive order, extending legal protections to hospitals and a variety of other health care facilities and health care providers who the state says are “rendering assistance” to Illinois’ efforts to combat the COVID-19 pandemic.
It marked the 19th executive order signed by the governor since he issued a disaster proclamation on March 9 over the COVID-19 outbreak in Illinois.
In the document, filed as Executive Order 2020-19, Pritzker cites authority under the Illinois Emergency Management Act and the state’s Good Samaritan Act to grant broad protection from “civil liability” for “health care facilities, health care professionals and health care volunteers” who are “’rendering assistance’ in support of the State’s response” to COVID-19.
The order defines “health care facilities” as those licensed and certified by the state under various state laws; “state-operated developmental centers;” “licensed community-integrated living arrangements,” generally known as group homes; mental health centers; and “federally qualified health centers,” among others.
According to the federal Health Resources & Services Administration, federally qualified health centers can include community health centers, migrant health centers and health care centers for the homeless and those living in public housing.
The executive order directed health care facilities, including hospitals, who are receiving the protection to cancel elective surgeries and procedures and otherwise increase the number of beds available for COVID-19 response and treatment.
Members of the Illinois state COVID-19 response team did not immediately reply to questions from the Cook County Record concerning the executive order or its need at this time.
The Illinois Health and Hospitals Association said the executive order was essential at this moment to boost the response effort to the health crisis across Illinois.
“This is an unprecedented time, requiring that care be provided in unprecedented ways,” said IHA spokesperson Danny Chun.
Chun noted the governor has issued calls to retired doctors, nurses and other medical professionals to return to service to aid the COVID fight. He also noted doctors and other professionals have come into Illinois from out of state to participate in the response, as well.
He said the governor is also considering bringing in fourth-year medical students or nursing students to lend aid, as well.
“Their liability coverage has expired, or they’ve never had any liability coverage to practice in Illinois,” said Chun. “They are all examples of providers needing liability protection.”
Further, Chun noted hospitals, doctors and the state are partnering to erect temporary hospitals in various locations, including in Chicago’s McCormick Place convention center and outside state prisons, while also reopening shuttered hospitals to help meet demand.
These include the former Sherman Hospital site in Elgin, MetroSouth Health Center in Blue Island and Westlake Hospital in Melrose Park. The governor announced the Westlake reopening during his daily COVID press briefing on April 2.
Chun said the state needed to take action to relieve fears among medical professionals and health care facilities, who may have worried that their actions to help the state save lives could land them in court when it is over, facing lawsuits from trial lawyers who normally rely on malpractice claims to fuel their practices.
“These are extraordinary times,” said Chun. “We need all hands on deck, everyone who can provide care, as the surge approaches.”
The executive order in Illinois is just the latest such order issued by a U.S. governor.
In New York, Gov. Andrew Cuomo issued such an order on March 23, similarly expanding that state’s Good Samaritan Law to cover medical facilities and providers engaged in the COVID fight.
Michigan Gov. Gretchen Whitmer signed a similar order on March 29.
The federal government has already granted immunity to medical device makers and others to spur manufacturing and development of life-saving devices.
And the U.S. Senate is considering legislation known as the “Facilitating Innovation to Fight Coronavirus Act,” which would limit malpractice lawsuits against doctors and nurses nationwide.
The bill’s sponsor, U.S. Sen. Ben Sasse, R-Nebraska, said the legislation is needed to shield doctors and nurses “from a plague of lawsuits.”
“In ERs and ICUs across America, doctors and nurses are writing the playbook as they fight this virus one day at a time,” Sasse said. “These heroes need a common-sense liability shield so that they don’t have to worry about lawsuits while they’re scrambling to save lives."
However, any limits on the ability to sue could still be challenged in court.
Gerald Maatman, an attorney with the firm of Seyfarth Shaw in Chicago, which specializes in defending companies against lawsuits, said challenges could yet arise.
"The issue is whether the executive order is legally valid or can limit future lawsuits," Maatman said. "I expect that will be a bone of contention if tested in the courts"
While governors enjoy broad emergency powers during times of disaster, that does not mean those powers are absolute.
Maatman pointed to "analagous situations" playing out in Texas and Pennsylvania.
In Texas, for instance, a federal judge in March slapped an injunction on a Dallas city ordinance mandating employers provide workers with paid sick leave. That ordinance was enacted in 2019, so it was not passed in response to COVID. However, a federal judge will allow the employers to proceed on their claims the Dallas ordinance violates their Fourth Amendment rights under the U.S. Constitution and that the ordinance conflicts with the Texas state constitution.
And in Pennsylvania, the state and Democratic Gov. Tom Wolf face a lawsuit challenging the power of the governor to shut down businesses without compensation, asserting it constitutes an illegal taking of property. In the complaint, the plaintiffs assert the order is no different than if the state government were to seize their property outright or demolish the businesses.
The orders from the Democratic governors directly threaten the ability of some of their party’s biggest donors to capitalize from potential lawsuits related to COVID patient care.
In Illinois and elsewhere, trial lawyers, including those specializing in suing doctors, hospitals and nursing homes for malpractice, neglect, wrongful death and other causes, have donated millions of dollars each election cycle to the Democratic Party and Democratic candidates and causes.
In 2016, for instance, a report from the Illinois Civil Justice League found the Illinois Trial Lawyers Association and Illinois trial lawyers and their firms had collectively donated more than $35 million to Democratic politicians and committees in the preceding 15 years.
A large share of the donations were directed to the Illinois Democratic Party itself, or to funds controlled by powerful Democratic lawmakers, including Illinois House Speaker and Illinois Democratic Party chairman Michael J. Madigan.
Pritzker’s run for governor was largely self-funded, records show, with the billionaire governor contributing more than $175 million of his own money to unseat former Republican incumbent Gov. Bruce Rauner in 2018, freeing up Democratic Party funds to be used in other races.