Whitmer vetoes legislation expanding and clarifying immunity for health care providers

On August 10, 2020, Governor Gretchen Whitmer vetoed Senate Bill 899 that would have amended the Emergency Management Act (EMA) to expand and clarify the scope of qualified immunity provided to health care providers during the COVID-19 pandemic. Among other things, Senate Bill 899 would have extended the period of qualified immunity to January 20, 2021 and extended retroactive application of qualified immunity from March 29, 2020 back to March 10, 2020. Senate Bill 899 also contained provisions clarifying the application of immunity to telehealth services and services rendered in the face of a shortage of resources.

History of Pandemic Immunity

Starting on March 29, 2020, Governor Whitmer issued several executive orders providing qualified immunity for health care providers with respect to injuries arising from “medical services in support of this state’s response to the COVID-19 pandemic.” We summarized the immunity provisions of EO-30 and EO-61 in two prior blog posts.

Duration of Pandemic Immunity

The Governor ended qualified immunity on July 13, 2020 when she issued EO-150 which rescinded EO-61 without renewing the immunity provisions contained in the order.  Under EO-30 and EO-61, the total duration of immunity extended from March 29, 2020 to July 13, 2020. However, the validity of executive orders issued by Governor Whitmer after her authority under the EMA arguably expired on April 30, 2020 (when the Legislature’s approval of her authority under the EMA expired) is subject to dispute in the pending Legislature v Whitmer case. Oral argument occurred in the Court of Appeals on August 4, 2020.  The Court of Appeals is required to issue an opinion no later than August 21, 2020 under an order entered by the Michigan Supreme Court. The Michigan Supreme Court will hear oral argument on September 2, 2020 on certified questions from a federal case addressing essentially the same issues presented in the Legislature v Whitmer case. The outcome of these cases in the Michigan Supreme Court will have a significant impact on whether immunity will apply to claims accruing between April 30, 2020 and July 13, 2020.

Significance of Veto Letter

In her veto letter to the Senate, Governor Whitmer cites concern about the immunity provisions of the EMA being activated during any declared state of emergency or disaster and lack of protection for nursing home residents as reasons for her veto. The Governor offered an explanation of the immunity provisions of EO-30 and EO-61 that could be construed/cited in the future as evidence of her intent. The Governor’s letter notes that section 4 of the EMA provides immunity if the Governor has declared a state of disaster and the health care provider renders services at the “express or implied request” of the Governor. In her veto letter, Governor Whitmer interprets her executive orders of EO-30 and EO-61 as her “express or implied request” for medical services under the EMA during the COVID-19 pandemic. This could support a broad reading of the immunity provision of the EMA and executive orders in future cases. The veto letter also makes clear the Governor’s intent to end pandemic immunity on July 13, 2020 when she issued EO-150.

As outlined in our prior posts, the scope of COVID-19 qualified immunity under the Governor’s executive orders and EMA will likely be subject to significant litigation in future cases arising during the effective period of immunity.