In 2020, COVID-19 was one of the leading causes of death and illness in the United States, with both Pennsylvania and New Jersey reporting significant rates of infections and deaths. Despite efforts to curb the virus, COVID-19 continues to affect many communities. A developing legal question is whether civil tort liability may be imposed against individuals or organizations that allegedly contributed to the pandemic’s spread, by act or omission. Plaintiffs attorneys are advertising for clients affected by the virus, and a number of tort cases already have been filed. As discussed below, a patchwork of state and federal measures provide limited tort immunities.

Pennsylvania’s Tort Immunity

In the early weeks of the pandemic, Pennsylvania sought to bolster its ranks of available medical professionals by loosening certain of its regulations and licensing requirements. Among other things, Pennsylvania suspended certain licensing requirements, permitted out-of-state telemedicine, encouraged retired workers to return, and allowed medical students to begin treating patients. Recognizing that many of these individuals might be providing care outside the scope of their normal practices, Gov. Tom Wolf issued an executive order on May 6, 2020, granting civil immunity to any health care provider engaged in emergency services activities related to COVID-19 in a health care facility, nursing facility, assisted living facility, alternate care facility, community-based testing site or noncongregate care facility. Health care providers shall not be liable for death, injury or loss of property resulting from the emergency services or disaster services activities related to COVID-19. Civil immunity does not apply, however, in the event of willful misconduct or gross negligence. Notably, the executive order explicitly declined to extend the same immunity protections to any health care facility or health system at which these immunized persons are providing care.

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