Licensure & Liability Concerns for Physicians, Other Healthcare Professionals, Medical Residents, and Students During the Ongoing COVID-19 Pandemic

By Jessica Woodrow, Esq.

As the COVID-19 pandemic continues and New Yorkers adjust to mandatory social distancing measures, many healthcare providers across the state have expressed concerns about licensure, both generally and about scope of practice and liability issues in particular. In response to the ongoing emergency, Governor Cuomo has signed a series of Executive Orders related to the provision of essential medical services.

Under Gov. Cuomo’s Executive Orders 202.2 and 202.10:

“[A]ll physicians, physician assistants, specialist assistants, nurse practitioners, licensed registered professional nurses, and licensed practical nurses shall be immune from civil liability for any injury or death [allegedly sustained] directly or as a result of an act of omission [in the course of providing care in support of the COVID-19 emergency] unless it is established that such injury or death was caused by [] gross negligence.”

Students in programs to become licensed healthcare professionals are permitted to “volunteer” at healthcare facilities for credit, as if the student had secured the placement under a clinical affiliation agreement, without entering into any such agreement; this would appear to apply to residents as well, who are covered under the now-suspended applicable Education Law.  Note that this portion of the Order should alleviate concerns that students will have to repeat portions of their training/residencies if they participate in ongoing emergency efforts.

According to the Tier 2 support staff at the NYS coronavirus hotline, the Education Law is suspended to the extent necessary to permit unlicensed people, upon completion of training, to obtain swabs for covid-19 testing; to the extent necessary, unlicensed nurses who haven’t completed training to do nursing work may do so under supervision of nursing staff within the scope of practice of a licensed nurse. Relatedly, Subdivision 4 of Section 6909 of the Public Health Law, Subdivision 6 of Section 6527 of the Education Law, and Section 64.7 of Title 8 of the NYCRR are all suspended to the extent necessary to permit physicians and nurse practitioners to instruct others to swab COVID-19 patients for purposes of testing or to perform other tasks as necessary to provide care. Tier 2 support staff confirms that this guidance, in combination, allows students and residents to practice medicine and allows licensed physicians to tell them to do so, all without fear of compromising current or future licenses to practice in their chosen field.

Additionally, recordkeeping requirements are temporarily suspended insofar as immediate action is required to provide care related to the outbreak. Such actions, if taken reasonably and in good faith, “shall be afforded absolute immunity from liability for any failure to comply with any recordkeeping requirement.”

Finally, advanced practice registered nurses with a masters/PhD specializing in anesthesia, physician assistants, special assistants, and nurse practitioners are permitted to practice without oversight by a supervising physician.

If you are a healthcare provider with questions regarding evolving emergency practice concerns, please contact David Zarett or Jessica Woodrow at 516-627-7000 or JWoodrow@weisszarett.com

ATTORNEY ADVERTISING: PRIOR RESULTS DO NOT GUARANTEE FUTURE OUTCOMES.