Across the nation, states have been stepping up to minimize legal risks to health care workers as they continue the fight against the global COVID-19 pandemic. Massachusetts became the most recent state to take steps to protect its health care providers from civil liabilities arising out of the pandemic. On April 17, 2020, Governor Charlie Baker signed Massachusetts bill S. 2640 into law. The new law grants certain health care workers and facilities immunity from many types of civil liability for services provided in response to the COVID-19 pandemic. The new act defines health care facilities to include hospitals, mental health facilities, skilled nursing facilities, assisted living residences, community health centers, home health agencies participating in Medicare, licensed clinics, and sites designated by the commissioner of public health to provide COVID-19 related services. Specifically, the law precludes these facilities and many of their health care professionals from being subject to civil liability where the provider's treatment was impacted by the COVID-19 outbreak or the COVID-19 emergency rules. The immunity provided under the act does not extend, however, to (i) any acts or omissions constituting gross negligence, recklessness, conduct undertaken with an intent to harm, or discrimination based on race, ethnicity, national origin, religion, disability, sexual orientation, or gender identity; (ii) consumer protection actions brought by the Massachusetts attorney general; or (iii) false claims actions brought by or on behalf of the Commonwealth.
In addition to providing protections for health care facilities, the law also immunizes volunteer organizations that make their facilities available to the Commonwealth in order to support its response to COVID-19. If an organization allows the state to use its facility to provide care, those organizations cannot be held liable in a civil action for damages arising from the use of that facility. Similar to the protections for health care providers, the law does not exempt volunteer organizations from civil suits where the damage caused was a result of the volunteer organization's gross negligence, recklessness, or intent to harm. The civil liability immunities provided under the new law take effect for all claims arising between March 10, 2020 and the date the COVID-19 public health emergency is either terminated or rescinded.
The Massachusetts law is part of a growing trend among the several states to provide liability immunity to health care providers responding to the COVID-19 pandemic. Recently on April 1, Illinois Governor J.B. Pritzker issued Executive Order 2020-19 granting immunities to health care providers. The same day, New Jersey Governor Philip Murphy issued Executive Order 112 providing similar civil liability protections to health care providers. And on April 2, New York Governor Andrew Cuomo signed the 2021 New York state budget, which included the Emergency Disaster Treatment Protection Act, a law that provides health care providers with qualified immunity from civil liability arising from COVID-19-related treatments. The federal government also has taken steps to minimize health care provider liability under the Public Readiness and Emergency Preparedness Act ("PREP Act") by affording civil liability immunity to health care providers involved in "the manufacture, testing, development, distribution, administration, and use of the Covered Countermeasures" as we have discussed here, here, and here. The new Massachusetts law is welcome to many of the health care providers working across the state on the front lines to combat the spread of the COVID-19 pandemic.
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