Connecticut Retracts Immunity for Hospitals and Nursing Homes for COVID-19-Related Claims, Effective March 1, 2021
Pursuant to Connecticut Governor Ned Lamont’s Executive Order 10A, Section 4, immunity protections for health care facilities, including hospitals and nursing homes, ends starting March 1, 2021. The previous Executive Order 7U, Section 1, immunized health care facilities from liability for injuries resulting from services provided in “good faith” and “attributable to the pandemic.”
As of March 1, 2021, such immunity continues for only “health care professionals,” which term is narrowly defined as an individual who is licensed, registered, permitted or certified in any state in the United States to provide health care services and any retired professional, professional with an inactive license, or volunteer approved by the Commissioner of the Department of Public Health or the Commissioner’s designee.
This means doctors, residents, nurses, physician assistants, aides and other practitioners are shielded from liability for acts or omissions ordinarily constituting malpractice, whereas hospitals and nursing homes can be liable for those same acts or omissions. For example, on a day a hospital is short-staffed due to COVID-19 quarantine protocol, the hospital may have sole liability when a non-employee emergency room physician with their own insurance policy delays in diagnosing a condition leading to death. The effect is that facilities deemed vicariously liable for the conduct of their still immunized employees and other staff will have no apparent right to a set-off, and therefore face greater incidences of exposure.
There is no consensus on when the pandemic will end. Despite vaccine efforts, there is an increasing number of documented cases of new variants within Connecticut and the United States generally. Eliminating liability protections for health care facilities in the midst of this uncertainty ensures facilities will face an influx of lawsuits and increased exposure.
Facilities may seek to prophylactically remedy the imbalance in liability protections by modifying employment contracts to include more aggressive indemnification and contribution clauses and bring more impleader actions on those theories. Whether such actions will circumvent the liability protections in place for individuals’ malpractice is not clear. What is clear is concern for increasing internal political dissonance and deteriorating relationships where facilities feel compelled to sue their own. That concern is amplified by the country’s current extraordinary need for health care providers and facilities to work together symbiotically to get us through this difficult time.