MDAdvisor Winter 2021

The boundaries of medical ethics are constantly tested, but over the last year, as the country weathered and continues to weather the COVID-19 pandemic, the application of these principles has truly been put to the test. Unfortunately, many physicians, healthcare providers and healthcare entities found themselves stretched extremely thin and in many instances, not able to render care at the same level they and the patient population had been accustomed to in the United States. This situation leaves the medical community with many questions regarding medical ethics and civil/criminal immunity.

Medical Ethics During the Pandemic

What is right? What is wrong? What is fair, just and honest? These philosophical and practical issues are all called into play when discussing ethics. Tom Beauchamp and James Childress are best known for developing the four basic principles in medical ethics.¹ These principles are:

• Autonomy: Patients have the right to determine their own health
• Justice: Fair and equal distribution of the benefits and burden of care across society
• Beneficence: Determining and doing what is in the best interest of the patient
• Non-maleficence: Do no harm to the patient

These principles, of course, are not the only ethical principles; there are others, including honesty, transparency and respect. The American Medical Association also maintains a Code of Medical Ethics,² which articulates the nine principles physicians must follow in their medical practices to uphold the medical professional standard.

“Even with the best of intentions, the healthcare community could not always satisfy principles such as beneficence and non-maleficence”

Although these principles are well-known, as the number of COVID-19 cases surged in March 2020, many of the ethical principles were challenged as the healthcare community was faced with a shortage of medical supplies, a shortage of healthcare professionals and a lack of knowledge regarding how to treat this novel disease. Even with the best of intentions, the healthcare community could not always satisfy principles such as beneficence and non-maleficence, because physicians did not have the medical knowledge, at that point, to determine what course of treatment would be best for the patient and thus, could not safely make the medical determination regarding the best course of treatment.

Autonomy of patients was challenging as well. Due to the highly contagious nature of the virus, positive coronavirus cases were reported to the Department of Health as a communicable disease, and patients were asked to cooperate and work with the task force assembled for contract tracing. In the highly stressed environment, with little information and a highly charged political environment, many patients were at a loss about what, if any, options they had to fight the virus and what courses of action to take to protect themselves, their loved ones and others.

The principle of justice—distributing the benefits and burden of care across the society in a fair and equal manner—was probably the medical ethics principle that was truly brought to the forefront during the pandemic. Healthcare communities were faced with extremely difficult decisions regarding how to fairly and impartially ration the limited supplies and resources they had, if they had any at all.

More concerning was the unavoidable consequence that in many instances, even with the best of intentions, the medical care rendered might have fallen below the standard of care. In the instance of the insufficient number of ventilators, which was closely covered by the media, there were countless situations where hospitals had more patients in critical care needing to be placed on ventilators than the number of available ventilators. How does one choose who gets a ventilator and who does not? And how does one avoid the potential backlash of a malpractice lawsuit or a complaint to the licensing agency or to the Department of Health by the patient’s family if the patient who did not receive the ventilator passed away? How does a healthcare system provide the necessary support and guidance to its healthcare professionals while limiting its legal liability exposure?

Due to the shortage of healthcare professionals, many were asked to step out of their specialty to treat COVID-19 patients and in other instances, were asked to perform medical care outside their scope of practice. In a non-pandemic situation, taking such actions would be highly inadvisable as the legal exposure is astronomical, likely resulting in malpractice lawsuits and potentially, disciplinary actions by the practitioner’s licensing agency, such as the Board of Medical Examiners or the Physician Assistant Advisory Committee.

Civil Immunity During the Pandemic

Although a blanket exoneration for the healthcare community is not feasible, New Jersey Governor Phil Murphy moved to address the need for urgent medical care in uncharted territory by extending licenses to healthcare providers, expanding the scope of practice in certain situations and expanding civil immunity. He issued an Executive Order and shortly thereafter, signed a bill into law providing broader immunity to those acting in support of or in response to the COVID-19 pandemic.

Executive Order: On April 1, 2020, Governor Murphy issued Executive Order 112.³ This Order, which is still in effect as of the date of this writing, provides for temporary healthcare licenses to address the shortage of healthcare providers, expands the scope of practice in certain situations and expands civil immunity.

The following is a summary of Order 112:

Broader Civil Immunity for Healthcare Providers

• The Order extends the immunity generally available to public entities during public health emergencies to healthcare professionals and private entities, such as healthcare systems.
• It provides civil liability immunity to healthcare professionals including advanced nurse practitioners (NPs) and physician assistants (PAs) who may or may not be practicing within their scope of practice.
• It provides broad liability immunity for healthcare professionals granted temporary licenses, many of whom were practicing without professional liability insurance, as long as their actions do not constitute a crime, actual fraud, actual malice, gross negligence or willful misconduct.
• This immunity is retroactive to March 9, 2020, and is valid during the State of Emergency or Public Health Emergency.

Expansion of Scope of Practice

• The Order expands the scope of practice for NPs and PAs by temporarily removing physician oversight requirements and allowing them to prescribe controlled dangerous substances (CDSs) independently.
• It temporarily lifts the requirement for NPs to work with a collaborating physician and removes requirements to have a collaborating physician review and sign medical charts, provide the approval to dispense narcotics for chronic pain management or detoxification treatment, and determine medical services needed for treatment of substance use disorder.
• It removes restrictions and obligations of physicians to supervise PAs and lifts the requirement for delegation agreements for PAs.

Temporary Licenses

• The Order directs the Office of the Attorney General, Division of Consumer Affairs (DCA), to temporarily reactivate the licenses of New Jersey healthcare professionals who retired within the last five years and issue temporary medical licenses to physicians licensed in a foreign country.
• Under a previous directive issued by Governor Murphy, the DCA was allowed to issue temporary licenses by reciprocity for out-of-state healthcare providers.

Bill No. S-2333/A-3910: Shortly after issuing Executive Order 112, on April 14, 2020, Governor Murphy signed into law S-2333/A-3910,⁴ expanding civil and criminal immunity to certain healthcare professionals and healthcare facilities for claims alleging injury or death during the pandemic.

The following is a summary of that Law:

• The Law is retroactive to March 9, 2020.
• Healthcare professionals—physicians, physician assistants, advanced practice nurses, registered nurses, licensed practical nurses, emergency medical technicians or mobile intensive care paramedics and radiologic technologists—are granted civil immunity for medical services rendered in support of and in response to the COVID-19 during the Public Health Emergency and State of Emergency declared by Governor Murphy.
• Healthcare facilities are granted civil immunity for acts or omissions by their agents, officers, employees, representatives and volunteers, as long as the healthcare professionals are immune from liability according to the Law.
• The Law also provides immunity to healthcare professionals and healthcare facilities, who in good faith took efforts to treat COVID-19 patients and to prevent the spread of the disease, including engaging in telemedicine, and diagnosing and treating outside their normal scope of practice or expertise.
• The Law provides criminal and civil immunity to healthcare facilities and its healthcare professionals for injury or death alleged as a result of the allocation of mechanical ventilators or other scarce medical resources, as long as the healthcare facilities adopted and followed a scarce critical resource allocation policy. (NJ Commissioner of Health Judith M. Persichilli had issued guidelines for the creation of scarce critical resource allocation policies on April 11, 2020.⁵)
• The Law specifically excludes from immunity any “acts or omissions constituting a crime, actual fraud, actual malice, gross negligence, reckless or willful misconduct.”
• The expanded immunity granted by the Law shall apply for acts or omissions that took place during the pendency of the State of Emergency or Public Health Emergency declarations by Governor Murphy.
• The Law provides authority to the Division of Consumer Affairs within the Department of Law and Public Safety, with the consent of the Attorney General, to issue administrative orders suspending or modifying statutes and regulations governing the practice of healthcare professionals, during the pendency of the State of Emergency or Public Health Emergency declarations by Governor Murphy.
• The Law provides authority to the Commissioner of Health to provide temporary certification to medical technicians and paramedics whose certifications might have lapsed, were inactive or qualified for reciprocity certification, during the pendency of the of the State of Emergency or Public Health Emergency declarations by Governor Murphy.

It is important to recognize that the new Law does not apply, and will not provide, broad immunity to medical services unrelated to the COVID-19 emergency. The Law specifically states that it is not its intent to provide immunity to “all inpatient or outpatient procedures or any medical treatment rendered during the timeframe of the COVID-19 emergency,” and the “medical care rendered in the ordinary course of medical practice does not provide the granting of immunity.” Thus, medical services rendered during the pandemic but not in support of or in response to COVID-19 will not benefit from the expanded immunity.

Although the immunity afforded by the Order and the new Law cannot prevent a healthcare professional or a healthcare facility from being sued for malpractice or negligence, as it would violate public policy of access to court, it will provide some protection to defend against such claims. As with any new law, it is anticipated that plaintiffs and plaintiffs’ counsel will test the boundaries of the expanded immunity afforded, and only time will tell whether and what portion of the Order and Law will withstand the ultimate test of the legal system.