The Pulse February 2025 - James and the Giant Immunity
Who remembers COVID-19? Sometimes, it seems like it was a small annoyance decades ago. How quickly we forget. In fact, we are approaching the 5-year anniversary of the pandemic, including suspension of elective surgeries, stay-at-home orders, personal protective equipment shortages, and, notably, immunity granted to hospitals and healthcare providers under Governor Pritzker’s emergency disaster proclamations. For a number of years, plaintiffs and defendants watched the appellate court trends as this immunity was advanced. Many trial courts reserved ruling or denied these challenges without prejudice, waiting for some indication from the Illinois Supreme Court as to the true breadth and protection afforded to healthcare providers by these proclamations. In October 2024, the Ill. Supreme Court published a landmark decision confirming that the immunity found in the disaster proclamations is a “blanket” immunity if the facility or healthcare provider can meet certain conditions, prove certain facts, and if the facts fall within a certain timeframe.
In James v. Geneva Nursing & Rehab. Ctr. LLC, the Illinois Supreme Court addressed the scope of immunity granted to healthcare facilities during the COVID-19 pandemic. 2024 IL 130042. The plaintiffs, representing the estates of deceased nursing home residents, filed wrongful-death lawsuits against Geneva Nursing and Rehabilitation Center, alleging that between March and May 2020, the facility negligently and willfully failed to control the spread of COVID-19, causing the residents’ deaths. Id. ¶ 9.
The nursing home moved to dismiss the negligence claims, citing immunity under Executive Order 2020-19 issued by Governor J.B. Pritzker on April 1, 2020. Id. ¶ 10. The Governor entered this order pursuant to the Illinois Emergency Management Agency Act (IEMA), and it directed healthcare facilities to assist the state’s COVID-19 response. Id. ¶¶ 6-7. In exchange for that assistance, the order offered qualified providers immunity from civil liability for any injury or death occurring while rendering such assistance, except in cases of willful misconduct. Id.
The central question was whether this immunity applied broadly to all acts of ordinary negligence by healthcare facilities during the pandemic or whether it was limited to actions directly related to COVID-19 treatment. The Illinois Supreme Court concluded that the immunity extended to any claims of ordinary negligence—not just those related to COVID-19—that occurred while the facility was rendering assistance to the state during certain times early in the pandemic (April 1-May 13, 2020). Id. ¶¶ 35-36.
This ruling has significant implications for certain medical malpractice claims in Illinois. Any allegations of ordinary negligence between April 1, 2020, and May 12, 2020, should be subject to dismissal or summary judgment if the provider or healthcare facility can support the challenge with appropriate evidence and affidavits establishing that they were assisting the state with its response to COVID-19. This may include accepting admission of COVID-19 patients, preserving PPE for use by healthcare providers, actively treating COVID-19 patients, and suspending elective surgeries…the list of potential sources of proof goes on and on. The immunity is based on Executive Orders 2020-19 and 2020-33. On May 13, 2020, Executive Order 2020-37 became effective, which in part permitted elective surgeries again. That order continued some aspects of immunity for facilities and providers, but it is contingent on their adherence to IDPH guidelines designed to preserve hospital capacity and protect healthcare workers. Providers that continued to postpone/cancel elective surgeries maintained the blanket immunity, but providers that began doing elective surgeries likely only have immunity for injuries relating to the “diagnosis, transmission, or treatment of COVID-19.” There is likely no liability immunity in place after June 27, 2020.
We are now litigating several motions to dismiss and motions for summary judgment based on the James decision and will keep our clients advised of any developments in this regard. It’s a great time to double-check that date of loss and cross-reference it with the dates listed above.
