Health-care workers treating the exploding number of New Jerseyans in the hospital with the coronavirus are arguably the living definition of “acting in good faith.” But just to be sure they are protected, Gov. Phil Murphy signed an executive order Wednesday granting these professionals protection from malpractice lawsuits.
“My order makes clear the healthcare professionals we are calling upon to help with our state’s COVID-19 response will be immune from civil liabilities for action taken in good faith,” Murphy said at the Trenton War Memorial during his daily coronavirus press briefing.
The executive order is designed to encourage more doctors, nurses and other professionals not already on the front lines to volunteer their time, as the state and federal government prepare to open four temporary hospitals that will need staffing.
Murphy put out the call for such volunteers, and as of Wednesday, 5,200 people have responded, he said.
“Your talents will be matched to where our needs are the greatest,” he said. “Let me put on the Uncle Sam hat and tell you, we need you.”
The executive order was revised Wednesday night after questions arose about whether it would have actually prevented lawsuits against health care workers or medical facilities responding during the outbreak.
The original order said health care professionals and facilities would be immune from civil liability “to the extent that the practitioner’s existing liability insurance does not provide coverage or an applicable limit is exceeded,” but not eliminate the possibility of a lawsuit.
NJ Advance Media asked Michael Most, a head and neck surgeon who is volunteering as a critical care physician at Morristown Medical Center, to review the original order. At best, Most said, the order would only limit the financial payout beyond what the malpractice insurance agreed to pay but it would not prevent a lawsuit.
New York Gov. Andrew Cuomo issued an executive order last month providing unqualified immunity, noted Most, a member of the Doctor Patient Alliance, an organization of physicians which formed to speak out on statewide issues. “I want to work and not be afraid,” he said.
The governor’s office reissued a revised executive order Wednesday night with language that provided unqualified immunity, Murphy’s spokeswoman Alex Altman said.
Most said he had called his malpractice insurance carrier to make sure his volunteer work in the ICU would be covered and was surprised to learn it wasn’t because it was “outside his specialty.” Atlantic Health Systems, Morristown Medical Center’s parent company, later assured him he would be covered under its disaster liability policy, he said. But not every physician will receive that protection, he added, which is why the executive order is needed.
Doctors “don’t think about that stuff. Like the fire department, when we are asked, we show up,” Most said.
Murphy’s order does not protect professionals from litigation over “gross negligence.”
Murphy’s executive order comes five days after state lawmakers in Monmouth County called on the governor to grant “reasonable, qualified immunity to healthcare personnel.”
“The qualifier here would be if there is established evidence that the injury or death of the COVID-19 patient is as a direct result of gross negligence on the part of the medical personnel,” according to a statement from state Sen. Declan O’Scanlon, Assemblywoman Serena DiMaso, and Assemblyman Gerry Scharfenberger, all R-Monmouth.
Murphy’s executive order also waives “scope of practice” requirements for physician assistants and advance practice nurses “who are already being called upon to shoulder extraordinary burdens.”
State regulations require these advanced-level professionals be supervised by physicians. But the order gives them greater autonomy, including the authority to “prescribe controlled dangerous substances when appropriate.”
The order authorizes the state Division of Consumer Affairs to temporarily reactivate the licenses of healthcare professionals who have retired within the last five years, and to grant temporary licenses to doctors from foreign countries who are in “good standing.”
There are 22,255 confirmed cases of COVID-19 and 355 deaths in New Jersey, Murphy said.
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