New Jersey Executive Order No. 112 and New York Executive Order No. 202.10
As of April 9, 2020, according to the Centers for Disease Control and Prevention, New Jersey and New York had reported a total of 196,753 cases of COVID-19. Accordingly, the governors of the states of New Jersey and New York recently signed Executive Order No. 112 and Executive Order No. 202.10 respectively in an attempt to ensure that for the duration of the current public health emergency, each of these states has an adequate number of physicians to treat patients afflicted by COVID-19 and other critical illnesses, and patients requiring essential invasive procedures, diagnostic testing and general medical care. A brief summary of each Order follows.
On April 1, 2020, governor Philip Murphy, took the drastic measure of signing Executive Order No. 112 that authorized the Department of Law and Public Safety, Division of Consumer Affairs (“DCA”) to permit for a temporary basis the practice of medicine in New Jersey by (i) physicians previously licensed to practice in New Jersey who retired from active practice within the last five years, either by electing to place their license in inactive status or by allowing their license to lapse; and (ii) physicians who are licensed, in good standing, in another country. For retired physicians, the Order suspends and waives requirements pertaining to fees, affidavits of employment during retirement, and proof of continuing education. For foreign-licensed physicians, the Order suspends and waives requirements for examination, minimum premedical education and additional post-graduate education. In both instances, the Order waives the requirement for the mandated minimum medical malpractice insurance coverage.
For the duration of this public health emergency, the aforementioned physicians will be immune from certain civil liability. In particular, such immunity extends to any damages alleged to have been sustained as a result of a physician’s acts or omissions that are undertaken in good faith in support of New Jersey’s COVID-19 response, whether or not sustained in the scope of a physician’s practice. Such immunity will not extend to acts or omissions that constitute a crime, fraud, malice, gross negligence or willful misconduct. Notably, this immunity is retroactive and applies to acts or omissions occurring at any time during the declared public health emergency.
On March 23, 2020, governor Andrew Cuomo of New York issued Executive Order No. 202.10 in which the governor temporarily suspended or modified through April 22, 2020 any New York statute, local law, ordinance, order, rule, or regulation to provide physicians immunity from civil liability for any injury or death alleged to have been sustained directly as a result of an act or omission by a physician in the course of providing medical care in support of New York’s response to the COVID-19 outbreak. Such immunity will not extend to any injury or death that is caused by the gross negligence of a physician. The Order additionally: (i) affords physicians who are acting in reasonably good faith absolute immunity from civil liability for any failure to comply with any recordkeeping requirement to the extent necessary to perform tasks in response to the COVID-19 outbreak, including, but not limited to, the requirements to maintain medical records that accurately reflect the evaluation and treatment of patients, or requirements to assign diagnostic codes or to create or maintain other records for billing purposes.; (ii) removes limits on the working hours for physicians; and (iii) permits graduates of foreign medical schools who don’t have licenses to practice medicine, but do have at least one year of graduate medical education, to provide patient care in hospitals if they have completed at least one year of graduate medical education. On April 7, 2020, via Executive Order No. 202.14, governor Cuomo temporarily suspended or modified any New York statute, local law, ordinance, order, rule, or regulation to the extent necessary to permit any physician who will graduate in 2020 from an accredited academic medical program, and who has been accepted by an accredited residency program within or outside of New York State, to practice at any institution under the supervision of a licensed physician. He additionally extended the above directives for thirty days until May 7, 2020.