Michigan Enacts Pandemic Health Care Immunity Act

On October 22, 2020, Michigan Governor Gretchen Whitmer approved Public Act 240 of 2020 known as the Pandemic Health Care Immunity Act (the “Act”).  The Act became effective on October 22, 2020, but the liability protection under the Act applies retroactively to health care provided during the period beginning on March 29, 2020 and ending before July 14, 2020.  Notably, there is no immunity under the Act for health care services provided outside of this timeframe.  The Act grants health care providers similar immunity from liability arising out of services provided during the continuing COVID-19 pandemic emergency as had been granted under Executive Order 2020-30 (now rescinded) issued under the Michigan Emergency Powers of the Governor Act of 1976.

Under the Act, a health care provider or health care facility that provided health care services in support of Michigan’s COVID-19 pandemic response during the period covered by the Act is not liable for any injury or death sustained by a person by reason of those services, unless it is established that the provision of services constituted willful misconduct, gross negligence, criminal misconduct, or intentional infliction of harm by the health care provider or facility.  The Act’s grant of immunity applies broadly to health facilities and providers including hospitals, nursing homes, hospices, homes for the aged, emergency response services, any surge capacity facility, licensed health professionals, as well as students and volunteers.   Similarly, “health care services” is defined broadly under the Act to include services provided via telehealth.

Although the Act is a positive development for providers and facilities, it remains to be seen whether the Act will have the effect of limiting COVID-19-related litigation against health care providers and facilities.