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Nursing homes and their patients have been ravaged by the COVID-19 pandemic.  Media coverage outlines the challenges nursing homes confront on almost a daily basis.  In addition, plaintiff firms are running ads, trolling for potential clients to help them file lawsuits.

On April 1, 2020, Illinois Governor J.B. Pritzker issued Executive Order 2020-19 in response to the COVID-19 outbreak. The Order grants health care facilities, providers, and volunteers immunity from civil liability for any injuries or deaths that occur while they provide relief from the outbreak. The immunity, however, does not protect against injuries or deaths that arise out of gross negligence or willful misconduct.

What follows is an analysis of Governor Pritzker's Executive Order.  In addition, we provide an overview of what constitutes gross negligence and willful and wanton misconduct.

If you have questions about the Order and how it might affect your organization, please contact Brian C. Fetzer, Matthew L. Johnson, Susan M. Hannigan, Andrew J. Kovarik, Lynn M. Reid, Sammi L. Renken, Gregory E. Schiller or the Johnson & Bell attorney with whom you regularly work.

 

Executive Order 2020-19

On April 1, 2020, Illinois Governor J.B. Pritzker issued Executive Order 2020-19 in response to the COVID-19 outbreak. The Order grants health care facilities, providers, and volunteers immunity from civil liability for any injuries or deaths that occur while they provide relief from the outbreak.

Section 1 of the Executive Order broadly defines “health care facilities” to include facilities licensed, certified, or approved by any State agency, which generally includes all State licensed nursing home facilities.

The immunity, however, does not protect against injuries or deaths that arise out of gross negligence or willful misconduct.

The Illinois Appellate Court for the First District has defined “willful misconduct” as “a course of action which shows actual or deliberate intent to harm or which, if the course of action is not intentional, shows an utter indifference to or conscious disregard for a person’s own safety or the safety or property of others.” Pikovsky v. 8440-8460 N. Skokie Blvd. Condo. Ass'n, Inc., 964 N.E.2d 124, 130 (Ill. App. 1st Dist. 2011).

Gross negligence, on the other hand, is a bit tougher to define since Illinois courts are split on their interpretation of the standard. The Northern District took the majority view in FDIC v. Giannoulias. 918 F. Supp. 2d 768 (N.D. Ill. 2013), which defined gross negligence as “very great negligence” or “something less than the willful, wanton, and reckless conduct.” Other Illinois Courts take the position that gross negligence constitutes recklessness, which falls under the umbrella of willful misconduct as an utter difference or conscious disregard for the safety of others.

Regardless of the interpretation, nursing homes are afforded more protection than usual under the Order. Traditionally, nursing homes were most susceptible to liability when they were in violation of 210 ILCS 45/1-101 et seq., or the Nursing Home Care Act. The Nursing Home Care Act has many nuances but generally provides that a nursing home provider shall not neglect a resident of the facility. The Act defines “neglect” as “a failure to provide adequate medical or personal care or maintenance that results in physical or mental injury to the resident or a deterioration in the resident’s physical or mental condition.” Alternatively, nursing homes were also susceptible to liability prior to the Order under the professional negligence standard. Professional negligence occurs when a professional fails to act as a reasonable professional would under similar circumstances or when a professional deviates from the standard of care.

Governor Pritzker has statutory authority to issue this order pursuant to Section 6(c)(1) of the Illinois Emergency Management Agency Act (the “IEMA Act”). The IEMA Act was enacted to ensure that the State would be prepared to adequately deal with natural disasters in the event that they arise. The IEMA Act authorizes the governor to make, amend, and rescind all lawful and necessary orders, rules, and regulations to carry out the provisions of the IEMA Act. Executive Order 2020-19 was issued to carry out Sections 15 and 21(b)-(c) of the IEMA Act, which grants immunity to State officials and certain private individuals to ensure that all State emergency management programs are coordinated to the maximum extent. Put simply, the legislature gave the governor authority by statute to issue emergency orders.

Now, generally, a plaintiff has a statutory or common-law cause of action to sue in state court. However, the legislature can essentially set the terms of that cause of action by, for example, limiting it by providing statutory immunity. Still, plaintiffs can challenge the order if it interferes with their constitutional rights to access the courts under due process or equal protections.

With that being said, we can expect courts to be rather lenient and more deferential to the legislature in times of dealing with a state of emergency. In other words, courts are typically reluctant to contradict orders by legislature or the executive in the presence of a public health crisis. Taking that into account, it is likely safe to presume the courts would look at a constitutional challenge of this Order under something like rational basis review. Applying rational basis review, courts seek to determine whether a law is “rationally related” to a “legitimate” government interest.

Here, there are many “legitimate” government interests that quickly come to mind. Obviously, at the forefront is public health. In examining the constitutionality of Executive Order 2020-19, the courts will look to determine whether the grant of immunity is rationally related to the State’s interest in upkeeping the public health.

Plaintiffs may also argue that Executive Order 2020-19 falls outside of the authority proscribed to the governor pursuant to the IEMA Act. If plaintiffs can prove that the order falls outside the statutory grant of authority, they may have an argument that the governor is encroaching on both legislative and judicial power. This would require the court to examine the scope of the IEMA Act to determine if granting immunity to health care providers falls within it.

As for now, the Executive Order is effective for the remainder of the duration of the Gubernatorial Disaster Proclamations, which currently extends until May 30, 2020.