This week, Attorney General Gordon J. McDonald issued General Opinion No. 2020-01 in which he concluded that health facilities and their employees who are engaged in emergency management are entitled to immunity, so long as they comply or reasonably attempt to comply with the state of emergency orders and rules.  In other words, New Hampshire’s front line providers will be immune from civil suit related to their efforts to care for COVID-19 patients. 

This Opinion directly answers a question posed by Department of Health and Human Services Commissioner Lori A. Shibinette about liability that acute care hospitals, assisted living facilities, and other facilities providing care to elderly or infirm patients (together, “health facilities”) may face when taking reasonable steps to implement Governor Sununu’s Executive Orders, as well as other orders from the DHHS and other state agencies.

Attorney General MacDonald’s Opinion highlighted that a major part of the Governor’s response to the pandemic was to ensure that health facilities could treat patients adequately without becoming overburdened.   To prepare for an influx of infected patients, the emergency orders included waivers of certain statutes and rules related to clinical spaces, medical supplies and equipment, and staffing.  In response, hospitals and other facilities expanded bed capacity, postponed elective and preventive services, prepared triage protocols, and worked to procure necessary supplies, among many other things.  This Opinion confirms that these actions should be shielded from suit.

Generally, the State itself is immune from suit unless there is a statute that waives that immunity.   Emergency management is one such instance where the New Hampshire legislature has not waived immunity from suit, and all emergency management activities are governmental functions.   Private actors—like hospitals and physicians—are not immune from suit normally.  However, this Opinion states that private actors carrying out emergency management activities are also deemed government actors entitled to immunity.   Therefore, if hospitals and nursing facilities attempt to comply with the emergency orders from the Governor and state agencies, under this Opinion they are afforded the same qualified immunity that state agencies receive.

Opinions from the Attorney General’s office are advisory in nature, and are not binding on the Court.  However, this Opinion provides a strong legal basis for healthcare entities and workers to argue that they are entitled to claim qualified immunity and that their efforts to manage patients under less than ideal conditions will not result in an onslaught of claims when the dust settles. 

Sulloway’s Health Law Group continues to monitor the challenging landscape for New England’s medical professionals.  If you have questions about this or other healthcare regulatory matters, please contact Melissa Hanlon at (603) 223-2888, Marrielle Van Rossum at (603) 223-2816, or our other group members