Illinois Executive Order Limits Tort Liability for Health Care Facilities, Providers, and Volunteers

Several states have taken measures to provide immunity from tort liability to health care providers and facilities aiding in the COVID-19 pandemic outbreak. On April 1, 2020, Illinois Governor J.B Pritzker issued an Executive Order in Response to COVID-19 (Executive Order 2020-19). This Order grants certain health care facilities, professionals, and volunteers immunity from civil liability when rendering assistance during the COVID-19 outbreak. As described below, the standards vary depending on whether the action was taken by a state facility or employee versus a private facility or employee or whether acting as a volunteer.

The Order does not extend to criminal liability for those actions that could rise to the level of criminality.

It does not appear that this Order would extend immunity to a private practice entity or private practice physician providing services in such a non-facility private practice setting (i.e. a private practice organized as a professional corporation under 805 ILCS 15 that is not licensed as a facility). Professional entities are not included in the definition of “Health Care Facility” and the definitions for professionals and volunteers both require the provision of services at a Health Care Facility as defined in the Order.

Who is Covered?

Facilities:

  • 77 Ill. Admin. Code § 1130.215
    • Ambulatory surgical treatment centers licensed under the Ambulatory Surgical Treatment Center Act
    • Institutions, places, buildings, or agencies licensed under the Hospital Licensing Act
    • Skilled and intermediate long term care facilities licensed under the Nursing Home Care Act
    • Skilled and intermediate-care facilities licensed under the ID/DD Community Care Act or the MC/DD Act
    • Facilities licensed under the Specialized Mental Health Rehabilitation Act of 2013
    • Hospitals, nursing homes, ambulatory surgical treatment centers, or kidney disease treatment centers maintained by the State or any department or agency thereof
  • University of Illinois Hospital Act, 110 ILCS 330
    • Any hospital, institute, clinic, outpatient department or office owned or leased by the University of Illinois at which a University health care program is conducted.
  • Alternative Health Care Delivery Act, 210 ILCS 3/35(2)-(4)
    • Postsurgical recovery care center
    • Children’s community-based health care center
    • Community based residential rehabilitation center
  • Emergency Medical Services (EMS) Systems Act, 210 ILCS 50
    • a hospital, nursing home, physician’s office or other fixed location at which medical and health care services are performed.
  • Department of Veterans’ Affairs Act, 20 ILCS 2805
    • veterans homes
  • State-operated Developmental Centers certified by CMS and licensed State-operated mental health centers created pursuant to the Mental Health and Developmental Disabilities Administrative Act, 20 ILCS 1705/4
  • Licensed community-integrated living arrangements as defined at 210 ILCS 135/2
  • Federally qualified health centers under the Social Security Act, 42 U.S.C. § 1396d(1)(2)(B)
  • Any government-operated site providing health care services established for the purpose of responding to the COVID-19 outbreak

Professionals & Volunteers:

  • Health Care Professionals are all licensed or certified health care or emergency workers who are:
    • Providing health care services at a Health Care Facility in response to the COVID-19 outbreak and are authorized to do so; or
    • Working under the direction of the Illinois Emergency Management Agency (IEMA) or DPH in response to the Gubernatorial Disaster Proclamations.
  • Health Care Volunteers are all volunteers or medical or nursing students who do not have licensure who are:
    • Providing services, assistance, or support at a Health Care Facility in response to the COVID-19 outbreak and are authorized to do so; or
    • Working under the direction of IEMA or DPH in response to the Gubernatorial Disaster Proclamations.

What is Covered?

All Health Care Facilities, Health Care Professionals, and Health Care Volunteers are directed to render assistance in support of the State’s response to the disaster recognized by the Gubernatorial Disaster Proclamations.

Rendering Assistance means:

  • For Health Care Facilities:
    • cancelling or postponing elective surgeries and procedures, as defined in DPH’s COVID-19 Elective Surgical Procedure Guidance;
    • increasing the number of beds;
    • preserving personal protective equipment;
    • taking necessary steps to prepare to treat patients with COVID-19
  • For Health Care Professionals:
    • Providing health care services at a Health Care Facility in response to the COVID-19 outbreak
    • Working under the direction of IEMA or DPH in response to the Gubernatorial Disaster Proclamations
  • For Health Care Volunteers:
    • Providing services, assistance, or support at a Health Care Facility in response to the COVID-19 outbreak
    • Working under the direction of IEMA or DPH in response to the Gubernatorial Disaster Proclamations

When does Immunity Apply?

  • For Health Care Facilities:
    • Immune from civil liability for any injury or death occurring while the Health Care Facility is engaged in the course of rendering assistance to the State in response to the COVID-19 outbreak and such injury or death is alleged to have been caused by any act or omission by the Health Care Facility, unless:
      • For State facilities, as described in 20 ILCS 3305/15, the injury or death was caused by gross negligence or willful misconduct; or
      • For private facilities, as described in 20 ILCS 3305/21, the injury or death was caused by willful misconduct.
  • For Health Care Professionals:
    • Immune from civil liability for any injury or death occurring while the Health Care Professional is engaged in the course of rendering assistance to the State in response to the COVID-19 outbreak and such injury or death is alleged to have been caused by any act or omission by the Health Care Facility, unless:
      • For State agents, employees, or representatives of any of them, as described in 20 ILCS 3305/15, the injury or death was caused by gross negligence or willful misconduct; or
      • For private persons or those who are employees or agents of private firms or corporations, as described in 20 ILCS 3305/21, the injury or death was caused by willful misconduct.
  • For Health Care Volunteers:
    • Immune from civil liability for any injury or death occurring while the Health Care Volunteer is engaged in the course of rendering assistance to the State in response to the COVID-19 outbreak and such injury or death is alleged to have been caused by any act or omission by the Health Care Volunteer, unless it is established that such injury or death was caused by willful misconduct as described in 20 ILCS 3305/21(c) and the Good Samaritan Act, 745 ILCS 49.