On April 26, 2020, Michigan Governor Gretchen Whitmer issued a new executive order (EO-61) expanding certain provisions of a previously issued executive order (EO-30) which addressed immunity of health care providers.  As outlined in the prior alert, Executive Order Provides Immunity to Health Care Providers, EO-30 included a provision extending immunity from liability to “licensed health care professionals” and “designated health care facilities” that provide “medical services in support of this state’s response to the COVID-19 pandemic.”  The scope of the immunity provided by EO-30 isn’t clear and will likely be subject to litigation in actions based on medical care and treatment rendered during the effective dates of the order.  EO-61 simply repeats the immunity provisions of EO-30 without providing further clarification.  EO-61 is effective immediately and rescinds EO-30.

What are the effective dates of immunity?   

EO-30 became effective immediately on March 29, 2020.  Therefore, executive order immunity became effective on March 29, 2020.  On April 1, 2020, the Governor issued EO-33 declaring a state of disaster in addition to the previously declared state of emergency.  The state of disaster declaration in EO-33 “activated” the statutory immunity provisions of MCL 30.411(4) which apply during a declared state of disaster.  On April 7, 2020, the Michigan Legislature voted to extend the declared states of emergency and disaster through April 30, 2020.  EO-61 is effective “until the end of the declared states of emergency and disaster.”  The scope of the Governor’s power to maintain a declared state of emergency or disaster beyond April 30, 2020 is currently subject to debate and controversy in the Legislature.  In summary, the current effective dates of executive order immunity and statutory immunity under MCL 30.411(4) are as follows:

  • March 29, 2020 – March 31, 2020: EO-30 Immunity
  • April 1, 2020 – April 25, 2020: EO-30 Immunity & Statutory Immunity
  • April 26, 2020 – April 30, 2020: EO-61 Immunity & Statutory Immunity

Who is entitled to immunity under EO-61?

EO-61 simply repeats the immunity provisions of EO-30.  Therefore, there is no change regarding the identity of individuals, providers and facilities entitled to immunity as described in our prior legal alert.  One thing to note regarding the scope of those entitled to immunity is that EO-30 and EO-61 are broader and more inclusive than the provisions of the EMA (MCL 30.411(4)).  EO-30 and EO-61 apply to any “licensed health care professional or designated health care facility.”  EO-61 also retains the provision from EO-30 extending immunity to unlicensed volunteers and students that perform activities in support of the state’s response to the COVID-19 pandemic at health care facilities.

What is the scope of immunity under EO-61?

Unfortunately, EO-61 doesn’t clarify the scope of immunity.  EO-61 continues to extend immunity to “medical services in support of this state’s response to the COVID-19 pandemic.”  Like EO-30, EO-61 states that it provides immunity “consistent with MCL 30.411(4).”  Adding to the confusion regarding the scope of immunity is the fact that the language of MCL 30.411(4) is different from the language utilized in EO-30 and EO-61.  MCL 30.411(4) extends immunity to a qualifying provider that “renders services during a state of disaster declared by the governor and at the express or implied request of a state official or agency or county or local coordinator or executive body…”  There are no cases addressing the application of MCL 30.411(4).  EO-30 and EO-61 could be construed as an implied request of an “executive body” or “state official” under MCL 30.411(4).  If so, MCL 30.411(4) arguably extends the scope of statutory immunity to any services rendered during the declared state of disaster by qualifying providers.  On the other hand, one could also argue that EO-30 and EO-61 limit the scope of immunity by requiring that the services be rendered “in support of the state’s response to the COVID-19 pandemic.”  However, what it means to render medical services “in support of the state’s response to the COVID-19 pandemic” isn’t clear and will be subject to significant debate in future cases.

In short, EO-61 doesn’t clarify the scope of qualified immunity available pursuant to the executive order and/or statute leaving the task of clarifying the scope of immunity to the courts during subsequent litigation based on medical care and treatment rendered during the COVID-19 pandemic.

Rhoades McKee’s dedicated medical malpractice defense team stands ready to assist you and your providers’ legal needs, even in these trying times.  Please feel free to contact any member of the team if you have any questions or concerns about these executive orders or any other issues facing your providers today.

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