Our healthcare provider clients should be keenly aware of a somewhat quiet provision that was passed into law in October 2020. Known as the “Pandemic Health Care Immunity Act,” it provides health care facilities and health care providers with immunity from liability for “health care services in support of Michigan’s response to the COVID-19 pandemic.” Health care providers engaged in such services are not liable for an injury, including death, by an individual unless it is established that the services amount to willful misconduct, gross negligence, intentional and willful criminal misconduct, or intentional infliction of harm. Clearly, depending on how this Act is interpreted, it can be of great benefit to our health care providers who are providing life-saving efforts to the citizens of Michigan in these trying and hectic times. The Act applies to emergency medical services personnel, county medical care facilities, freestanding surgical outpatient facilities, homes for the aged, hospitals, nursing homes, hospices, hospice residences, state-owned surgical centers, state-operated outpatient facilities, state-operated veterans facilities, licensed health professionals, as well as even to students and volunteers.
It is important to note that this Act applies retroactively and only to those health care facilities or providers sued for services that result in alleged injury on or after March 29, 2020 and before July 14, 2020. As with any law, the “devil is in the details.” Given the Act’s relatively young age, it is only starting to be litigated. For instance, what is a “heath care service” for which there may be immunity? This is broadly defined as “services provided to an individual regardless of the location where those services are provided, including the provision of health care services via telehealth or other remote method.” How broadly that provision is interpreted and its relation to COVID-19 remains to be seen pending court decisions. Health care providers, however, should keep this Act in mind in the event a claim is brought against them for the applicable time period.