Placebo Effect: How Illinois’ COVID Tort Immunity Fails to Immunize Medical Professionals and the Healthcare Industry

At a time when COVID-19 vaccinations are on the rise and there is renewed focus on reopening the state, Illinois’ attempt to immunize its medical professionals and healthcare industry from COVID-19 related civil liability ironically may be failing. Over the last fifteen months, medical professionals have strived tirelessly to provide care to their patients while protecting them from the unprecedented circumstances created by a novel and deadly virus. Recognizing the risks faced by medical professionals, many states implemented immunity provisions to protect healthcare workers from civil liability, with the goal of ensuring that medical professionals and their facilities could not be sued based upon a hindsight argument. In Illinois, Governor J.B. Pritzker provided civil immunity for medical professionals and facilities as part of his Executive Order 2020-19 dated April 1, 2020. The order states that medical professionals and facilities “shall be immune from civil liability for any injury or death alleged to have been caused by any act or omission” of the care provider or facility in “rendering assistance” to the State in its efforts to prevent the spread of COVID-19.[1] The Executive Order discusses various ways in which facilities can “render assistance” to the state and provides an immunity exemption for injuries caused by willful and wanton conduct. The immunity provision appears to be a direct and unequivocal limit on medical professional liability; however, Illinois plaintiffs’ attorneys have already begun to chip away at the meaning of the executive order, transitioning it from an immunity provision to just another tool to attack medical professionals through a reasonable cause analysis.

In 2020, a group of residents of Westchester Health and Rehabilitation Center filed multiple suits against the facility in the Federal District Court for Northern District of Illinois.[2] While some of their claims are for injuries unrelated to COVID-19, the complaints also include claims on behalf of all plaintiff-residents alleging that the facility failed to institute proper precautions to protect them from COVID-19, causing them to contract the virus. Westchester moved to dismiss the COVID-19 related allegations based upon the immunity provided by Executive Order 2020-19, but the Northern District denied the motion for two main reasons.

Addressing the resident-plaintiffs’ willful and wanton claims, the Court noted that the Executive Order specifically exempts willful or intentional misconduct from immunity. Such an exception is rather common, as Illinois frequently provides an exemption for willful and wanton or intentional misconduct as part of its immunity provisions in order to prevent bad actors from being shielded from liability.  However, the challenge to prove willful and intentional claims, especially in the professional liability context, counterbalances the effect of the exception. Given the specific exemption, the Court ruled that the willful and wanton allegations were excluded from immunity and dismissal.

Regarding the negligence claims, the Court found that immunity would only be applicable if Westchester proved it met the applicable standard of care under the Executive Order. As the Court noted, immunity is an affirmative defense that is only applied to dismiss a pleading when the complaint unambiguously pleads the elements of the immunity. The Complaints here alleged that the facility failed to properly “’render assistance’ in support of the State’s response [to COVID-19]” pursuant to the requirements of the Executive Order, asserting that Westchester was negligent in failing to institute safety precautions necessary to protect residents from the spread of COVID-19.  The Court found that whether Westchester’s COVID-19 response satisfied the Executive Order’s “render assistance” requirement was determinative of whether the immunity defense would apply. Because the plaintiffs alleged that Westchester’s response did not comport with the “render assistance” requirement, the Complaints alleged a theory circumventing immunity, and the Court denied the dismissal.

However, this reading of the Executive Order creates a troubling Catch-22 for Westchester’s immunity defense, largely nullifying the immunity of the Executive Order. Negligence claims against medical professionals and their employers are assessed by considering whether a professional’s actions met the applicable standard of care for his or her profession. If the medical professional can establish that his or her actions were reasonably within the standard of care, then there is no negligence and the claim must fail. Part of the standard of care analysis involves the consideration of government and regulatory standards for the practice of the profession, and compliance with the appropriate governmental standards generally evidences compliance with the standard of care. Here, the Court’s reading of the Executive Order hinges immunity on the trier of fact’s consideration of whether medical professionals at Westchester met the applicable governmental standards. This analysis mirrors that of a traditional negligence standard of care analysis. In other words, the ruling requires Westchester to prove that it met with the standard of care before immunity can be applied, necessitating that Westchester fully litigate, defend, and win the case at trial before it can be immunized from liability.

Thus, all a plaintiff must do to circumvent the Executive Order’s immunity provision is plead that the defendant medical providers and facility failed to satisfy the terms of the Executive Order. This is an exceptionally low bar to undermine immunity, especially when compared to other Illinois tort immunity provisions. For example, Illinois’ Local Government and Governmental Employees Tort Immunity Act provides immunity to a government entity and its employees for any injury resulting from a government employee’s conduct.[3] To circumvent that immunity, a plaintiff must plead willful and wanton misconduct, negligence in ministerial conduct, or one of a select few other exceptions, each of which is challenging to establish and will only arise in the most egregious and unusual circumstances. By contrast, under the Brady ruling, Illinois healthcare providers battling COVID-19 can only receive civil immunity if they uncontestably establish that they met the standard of care set out in the Executive Order.

Of course, the District Court’s interpretation of the Executive Order is not unreasonable. It takes the Executive Order at absolute face value, following its language to reach the conclusion that it applies COVID-19 immunity to medical professionals, albeit on an exceedingly limited and narrow scale. An immunity provision that does not actually provide immunity seems counterintuitive, but one might argue that the limitation on immunity was intentional, with politicians in Springfield wanting to make a show of solidarity with healthcare providers in the heat of the pandemic without going so far as to upset the ever-powerful and influential Illinois plaintiffs’ bar.

Illinois faced its challenges during the pandemic, especially in the Chicago area, and current statistics show the grim fact that Illinois suffered 23,793 deaths from COVID-19 and had approximately 1.28 million cases of COVID-19 at the time of this article’s publication.[4] Without proper immunity for Illinois’ medical professionals and facilities, Illinois’ medical professionals could face a deluge of COVID-19 related litigation, placing an immense strain on our healthcare industry just as it begins to recover from the onslaught of the pandemic. If Illinois’ government leaders truly intended this Executive Order to protect the State’s medical professionals, they should view this ruling as a cautionary tale and improve upon the Executive Order with stronger legislation meant to better protect our medical professionals.

[1] Ill. Exec. Order No. 2020-19 (Apr. 1, 2020), https://www2.illinois.gov/Pages/Executive-Orders/ExecutiveOrder2020-19.aspx Ill. Exec. Order No. 2020-19 (Apr. 1, 2020), https://www2.illinois.gov/Pages/Executive-Orders/ExecutiveOrder2020-19.aspx

[2] Loretta Brady v. SSC Westchester Operating Co. LLC, 20 CV 04500; Walsh v. SCC Westchester Operating Co. LLC, 20 CV 04505.

[3] 745 ILCS 10/2-201 et. seq.

[4] Tacking Coronavirus in Illinois: Latest Map and Case Count; The New York Times (April 12, 2021): https://www.nytimes.com/interactive/2021/us/illinois-covid-cases.html

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