NJ to give docs, hospitals immunity for COVID treatment choices
State lawmakers passed a bill Monday that would provide criminal and civil immunity to health-care workers and hospitals in New Jersey for medical treatment related to the COVID-19 emergency.
The bill, S2333/A3910, would be retroactive to March 9. It is intended to prevent malpractice lawsuits against doctors and nurses, including students rushed to graduation to help respond to the pandemic, for any acts or omissions undertaken in good faith.
It also applies to health-care facilities or health-care systems.
“Are we better off someone because there wasn’t a doctor to take care of them, or are we better off getting as many medical professionals in service, retired doctors, nurses, the whole gamut, as we’re hitting the height of this,” said Senate President Steve Sweeney, D-Gloucester.
“We are in a crisis right now. And getting medical professionals in service is more important right now. … It’s not a wonderful choice," he said. "But it’s better to bring professionals, health care professionals, on line rather than have no doctors to treat patients because they’re sick or they’re stretched out.”
Sweeney said the bill was developed in conjunction with Gov. Phil Murphy's office, which he said had made the issue a priority.
The bill specifically prevents lawsuits connected with the proper use of a “scarce critical resource allocation policy” – meaning, decisions about how to use ventilators, intensive care unit beds and other resources that may be in limited supply.
That concerned Sen. Nia Gill, D-Essex, who called it “so crucial to people who have these core co-morbidities” that might make a hospital or doctor choose to provide resources to another patient with better changes of surviving a coronavirus infection.
“There is nothing in this bill that requires the hospital, the doctor or the provider to call a family and tell a family we are not giving your mother the ventilator. We are not going to give your mother a bed. We are not going to treat your mother or your husband or your son with the medication,” Gill said.
“In fact, this bill gives criminal immunity to everyone regardless, and it creates an absolute immunity from criminal liability,” she said.
Sen. Bob Smith, D-Middlesex, said there isn’t “anything nefarious in this bill.”
Smith had heard from a doctor who specializes in pediatric anesthesiology who is being asked to help with COVID patients and wants to help but worries she’d be a target for a med-mal lawsuit.
“If we’re calling for medical experts to come to the aid of their state and the aid of their citizens, we’ve got to not do harm to them,” Smith said. “We can’t impose on them to say make yourself vulnerable to attacks when we’re short on the medical expertise.”
The bill was passed without any committee hearings or public testimony by votes of 30-2 in the Senate and 73-1 with five votes to abstain in the Assembly.
Sen. Mike Doherty, R-Warren, would have voted to abstain, but votes aren’t recorded that way in the Senate. He was instead recorded as not voting. Doherty said it’s a serious situation and that doctors who volunteer should be shielded but perhaps not hospitals.
“We’re providing blanket immunity for hospitals and health care systems, but we’re stripping away long-standing protections that exist for patients, our constituents, that may actually be injured here,” he said. “So it seems that the risk is being reallocated to the detriment of 100% of our constituents.”
Assemblyman Jamel Holley, D-Union, voiced similar concerns before voting to abstain.
“Any individual or any individual’s family that may have experienced some type of legal malpractice, that ability to do that is being removed right now,” Holley said.
The bill was amended to clarify that is only applies to the current state and emergency and public health emergency. For instance, said Assemblyman John McKeon, D-Essex, obstetrics malpractice in a delivery of a child would not be exempt from lawsuits.
“This is exclusively and only and clearly related to COVID-related treatment. Secondly, it’s not a blanket immunity, and I think that’s very important for all of us to understand,” said McKeon, who said gross or reckless actions still are subject to liability.
The bill says the immunity granted would not apply to acts or omissions constituting a crime, actual fraud, actual malice, gross negligence, recklessness, or willful misconduct.
“The risk is how many lives do we save versus how many lives would be lost?” said Sen. Steve Oroho, R-Sussex. “So I’m supporting the bill. I know we’ve got some cleanup to do. But let’s err on the side of saving versus losing.”