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New Jersey Statehouse in Trenton. (Photo: Kevin Sanders for New Jersey Globe)

Senate bill offers immunity to health care workers, hospitals

Health committee chairman votes no, says he’s not about about due process surrounding ventilator allocations

By Nikita Biryukov, April 13 2020 3:13 pm

The State Senate passed a measure giving healthcare workers and hospitals immunity from civil and criminal malpractice suits during the COVID-19 crisis.

The bill passed 30-2 with five abstentions after being fast tracked through to the floor without being heard by a committee.

Democratic Sens. Nia Gill (D-Montclair) and Joe Vitale (D-Woodbridge), who chairs the Senate Health, Human Services and Senior Citizens Committee, were the only two lawmakers to vote against the measure.

In part, Vitale’s opposition to the measure was based on the bill’s lack of due process surrounding decisions about which critical patients would receive a ventilator.

“Providing those who would make those decisions with civil and criminal immunity is the right thing to do, but the process in terms of who decides to remove someone from a ventilator or deny someone a ventilator has to be better defined,” Vitale said.

Senate President Steve Sweeney was unconcerned about his Health Committee chairman splitting with him on

“He wasn’t happy about the bill. He wasn’t happy about the process, and I don’t disagree with him. The problem is we are in a crisis right now, and getting medical professionals in service is more important right now.”

Five others — Sens. Michael Doherty (R-Washington), Linda Greenstein (D-Plainsboro), Ronald Rice (D-Newark), Nicholas Scutari (D-Linden) and Shirley Turner (D-Lawrenceville) — abstained, with some holding their votes over concerns about the bill’s content and others about the process surrounding its passage.

Scutari played a key role in pushing for amendments to the original version of the bill, which granted immunity for just about everything.

Under the measure, most health care professionals and institutions, including long-term care facilities, are shielded from malpractice lawsuits during the pandemic, though the bill does not protect against suits “to acts or omissions constituting a crime, actual fraud, actual malice, gross negligence, recklessness or willful misconduct.”

The protection offered by the bill is retroactive dating back to March 9.

Vitale also raised concerns over the blanket immunity given to long-term care facilities.

“I’ve heard more than anecdotally of a few of the long-term care facilities have been doing an awful job of protecting their employees and their patients, and they should not be immunized from reckless behavior,” the chairman said.

The bill’s boosters say the measure will encourage health care professionals who do not carry malpractice insurance, like retired practitioners and medical students, to volunteer their labor during the pandemic.

While the rate of new COVID-19 cases has slowed over the last week, hospitals in North Jersey continue to go on divert status — a designation indicating they are not accepting additional patients — with staff shortages being cited as the most common reason.

“My brother runs an emergency room in New Jersey, and the debate he was having, and I check on him almost every night because I’m scared to death of his health, was are we better of someone dying because there wasn’t a doctor to take care of him or are we better off getting as many medical professionals in service — retired doctors, nurses, the whole gamut — as we’re hitting the height of this?” Sweeney said.

Gill, Rice and Vitale, among others, voiced concerns over the breakneck pace of the bill’s passage.

Gill sharply criticized the process of receiving a bill late Thursday, just before Good Friday and Easter Sunday before this morning’s vote.

“Doctors don’t want to come in and risk being sued,” said Sweeney.

The measure moved quickly even by Trenton standards. It was introduced on Thursday and saw a floor vote Monday morning without ever coming before a committee.

Sweeney defended speed of the bill’s passage, saying the ongoing pandemic and hospitals’ growing concerns over staffing levels called for quick action.

“I’d like to get one thing very clear: We are in a public health crisis right now, and unfortunately, we are doing things beyond and outside what we would like to do, but we have a public health crisis,” Sweeney said. “We have to address it, and we need to address it now.”

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