The Illinois Supreme Court has sided with Illinois health care facilities and against the plaintiffs’ personal injury bar, ruling that Gov. J.B. Pritzker’s executive orders entered during the COVID-19 pandemic give health care facilities immunity from liability for ordinary negligence for incidents that occurred during the pandemic, even if the alleged negligence was not COVID-related.

Soon after the pandemic began, Pritzker entered a series of executive orders directing health care facilities to “render assistance to the State by providing health care services” in response to the pandemic to ensure that patients with COVID and other illnesses could still receive timely care and treatment. The executive order stated that certain health care facilities, including skilled nursing home facilities, “shall be immune from civil liability for any injury or death” when a health care facility “was engaged in … rendering assistance to the State by providing health care services in response to the COVID-19 outbreak, unless it is established that such injury or death was caused by gross negligence or willful misconduct of such health care facility.”

In James v. Geneva Nursing and Rehabilitation Center, a nursing home resident died from COVID. The facility filed a motion to dismiss, arguing that Pritzker’s executive order provided immunity from liability for ordinary negligence because the facility was rendering assistance to the state by buying and preserving personal protective equipment (PPE), training staff to use PPE, continuing to accept admissions from hospitals, and preventing and treating COVID from spreading.

The trial court denied the facility’s motion to dismiss but allowed the facility to appeal the decision before a trial occurred. The appellate court reversed, holding that a statute authorizing Illinois governors to enter the executive orders at issue expressly contemplated situations in which a governor could grant immunity from liability for ordinary negligence under certain circumstances, and that Pritzker’s executive orders were therefore proper.

The plaintiff’s lawyer appealed to the Illinois Supreme Court, which held that the executive orders gave the facilities immunity from liability for ordinary negligence while rendering assistance to the state during the pandemic, even if the alleged injury was not COVID-related. The Supreme Court noted that the executive orders expressly provided health care facilities with immunity for “any injury or death” that was caused by “any act or omission” of the facility that “occurred at a time” when the facility was “engaged in the course of rendering assistance to the State by providing health services in response to COVID.” The court interpreted this language to mean what it says: Health care facilities have immunity from liability for ordinary negligence regardless of whether the alleged injury was related to COVID if the facility was “rendering assistance to the State” during the pandemic.

The Supreme Court therefore remanded the case to the trial court to determine if the nursing home had, in fact, “rendered assistance to the State” during the COVID pandemic.

Health care facilities may not be out of the woods yet because the plaintiffs’ personal injury bar almost always includes a claim for gross negligence or willful misconduct in negligence complaints. Health care providers should nonetheless take some comfort in the Supreme Court’s decision to limit their liability for ordinary negligence that allegedly occurred during the pandemic.