By: Katherine Hanna
April 24, 2020
New Hampshire health care facilities and their employees and volunteers who are braving the front lines to respond to the COVID-19 crisis received a major boost from NH Attorney General Gordon MacDonald on April 22nd. MacDonald issued Attorney General Opinion No. 2020-1 in response to NH DHHS Commissioner Lori Shibinette’s request for an opinion regarding the level of immunity from liability that will be granted to those health care providers who perform emergency management activities to comply with emergency orders, rules, and waivers of the Governor, DHHS, and other NH state agencies intended to prepare the State for treating patients during the COVID-19 crisis and prevent the overburdening of existing resources.
The Attorney General opines that sovereign immunity provisions typically reserved for the State will, during an emergency, extend to private actors who are required to engage in emergency management activities at the Governor’s direction or request. Citing RSA 21-P:41, the Attorney General states: “[It] is very clear that all emergency management workers are entitled to immunity for any liability due to injury, death, or property damage while performing emergency management activities.” Because the AG recognized a countervailing proposition in Part I, Article 14 of the NH Constitution that provides every person a right to a legal remedy, he emphasized that such immunity will only be afforded to those health care providers “complying with or reasonably attempting to comply with any order issued by an authorized government management authority.” That said, because Governor Sununu has issued so many broad Emergency Orders to address COVID-19, the blanket of immunity for health care workers in the midst of the COVID-19 crisis appears extensive.
By its express terms, the Attorney General’s opinion applies to acute care hospitals, assisted living facilities, long-term care facilities, nursing facilities, residential care facilities, as those terms are defined by RSA 151 – 151-H, or any other similar facilities providing residential care to elderly or infirm patients (“health facilities”)” and their employees and volunteers. In addition to the above stated facilities, RSA 151 governs home health and hospice entities and providers, emergency medical and trauma providers, substance use residential treatment facilities, etc. Importantly, the Attorney General’s opinion also refers to the “volunteers” of health facilities. Therefore, it is logical to construe the immunity provision to extend to physicians and advance practice registered nurses of private practices who step up to volunteer to assist hospitals and other health facilities during the surge. As a practical matter, given that private practices are not expressly included within the Attorney General’s definition of “health facilities” because they are not licensed by the State, they may wish to have the hospital or health facility confirm in writing that they are being asked to “volunteer” to assist with the COVID-19 surge or crisis in order to carry out the Governor’s or other state agencies’ Emergency Orders.
This Attorney General’s Opinion provides much deserved protection to those health care facilities and workers who want to do the right thing for their state during the COVID-19 surge but who are understandably concerned about potential civil liability when performing essential health care duties while in uncharted waters. For example, in order to prepare for the potential COVID-19 surge, health facilities are being asked to jump into the still-developing telemedicine world; postpone elective and preventative medicine visits; onboard new staff members without the usual rigorous background checks; relax certain of their own rules and regulations regarding physician supervision of CRNAs and other APRNs; and so forth. These Emergency Orders of the Governor and state agencies make eminently good sense in a crisis, but they also present challenges and worries to health care facilities and their employees and volunteers who are accustomed to taking every precaution to assure that they comply with state laws and regulations and best practices for their patients. It is gratifying to see that Attorney General MacDonald, himself a former health care lawyer, understands that those health care facilities (and their employees and volunteers) who in good faith place themselves at great risk on the front lines during this crisis, should be spared additional concerns about liability.
Click here to view Attorney General Opinion No. 2020-1: https://www.doj.nh.gov/public-documents/documents/opinion-2020-01-immunity.pdf