As with everything, the COVID-19 emergency has affected the state boards that oversee the licensing of practitioners and conduct disciplinary actions. Below is a summary of the formal guidance that has been issued, as well as practical lessons learned, during this time.
Licensing
On April 17, 2020, New Jersey began a program to enlist foreign-licensed physicians to apply for a temporary emergency license to practice medicine in New Jersey. The temporary license will not extend beyond the current public health emergency. New Jersey is the first state in the country to implement this kind of program. Physicians who are licensed in a foreign country but living in the United States can apply to the program through the New Jersey Division of Consumer Affairs. The criteria for eligible candidates includes:
· Being in good standing;
· Having engaged in the clinical practice of medicine for at least five years;
· Having not been out of practice for more than five years;
· Having no disciplinary or criminal histories that preclude them from the program; and
· Providing copies of relevant documents to support their application, including their medical license, and information about their education and professional experience.
This adds to the efforts the state has already implemented regarding licensing for healthcare workers. On March 19, 2020, Governor Murphy signed legislation (A3862) to allow professional and occupational licensing boards to expedite licensure of out-of-state professionals. On April 6, 2020, Governor Murphy issued Executive Order 115, which allows certain retirees to return to public employment
Disciplinary Actions on Hold
Due to the COVID-19 emergency, it is unclear when state Boards will begin meeting again. Further, most state Boards are presently working with limited staff to handle non-emergent matters. Therefore, currently scheduled matters are being adjourned indefinitely.
State board actions are also affected by Governor Murphy’s Executive Order 127, issued on April 14, 2020, extending certain deadlines associated with rulemaking. EO 127 takes into consideration certain Executive Branch departments and agencies that remain subject to statutory deadlines imposed by the Administrative Procedure Act that require issuance, rejection, approval or modification of initial decisions, which includes state boards handling disciplinary actions. Typically, after a contested hearing, the statute provides 45 days after a hearing is concluded for a recommended report and decision to be issued. The state board, upon a review of the record submitted by the administrative law judge, then has another 45 days to adopt, reject or modify the recommended report and decision after receipt of such recommendations. EO 127 suspends these timelines by ordering that “[i]n any contested case…any pending deadline for filing of a recommended report and decision pursuant to N.J.S.A. 52:14B-10(c); and any pending deadline for adopting, rejecting or modifying a recommended report and decision, shall be extended by the number of days of the Public Health Emergency declared in Executive Order No. 103 (2020) plus an additional 90 days.”
Other Practical Considerations
Although the Board of Medical Examiners is not currently inclined to consider requests to reinstate currently suspended physicians, there are opportunities to assist those who have had state board action taken against them. For example, a medical practitioner who is currently ordered to pay monetary installments for purposes of paying a fine, restitution or fees, may be able to secure from the state board a postponement of that payment during the COVID-19 emergency based on financial hardship imposed by exceptional circumstances.
We are closely monitoring legal developments related to the COVID-19 crisis. If you have any questions about the bill or how the COVID-19 crisis may impact you or your health care facility, please contact us for a consultation.
For forty years, the lawyers at Dughi, Hewit & Domalewski, P.C., have represented doctors, nurses, and other healthcare professionals, as well as hospitals, nursing homes, and other health care facilities.
If your matter involves a medical licensing issue or state board action, please contact Brandon D. Minde at bminde@dughihewit.com. If your matter involves other COVID-19 legal issues or concerns, please contact Craig A. Domalewski at cdomalewski@dughihewit.com.
The information is provided solely for information purposes. It should not be construed as legal advice on any specific matter and is not intended to create an attorney-client relationship. The information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based upon particular circumstances. Each legal matter is unique, and prior results do not guarantee a similar outcome.
Yesterday, the New Jersey Legislature passed a bill that would provide limited immunity to health care workers and hospitals in New Jersey for medical treatment related to the COVID-19 emergency. The bill does not extend immunity to acts or omissions constituting gross negligence, recklessness, or willful misconduct.
The bill, S2333/A3910, passed both houses overwhelmingly and is now on Governor Murphy’s desk. A copy of the bill can be accessed here [S2333_l1]
The bill would be retroactive to March 9, 2020, and its protections will be available for COVID-19 related treatment during the state of emergency declared by the Governor.
The bill is intended to protect doctors, nurses and other healthcare providers from malpractice lawsuit for acts or omissions undertaken in good faith for medical treatment provided in response to the COVID-19 pandemic.
It also protects a “health care facility” as defined in N.J.S.A. 26:13-2, which defines a “health care facility” broadly to include, “an ambulatory surgical facility, home health agency, hospice, hospital, infirmary, intermediate care facility, dialysis center, long-term care facility, medical assistance facility, mental health center, paid and volunteer emergency medical services, outpatient facility, public health center, rehabilitation facility, residential treatment facility, skilled nursing facility, and adult day care center.”
The bill is intended to prevent lawsuits stemming from the use of a “scarce critical resource allocation policy” – i.e., decisions about how to use ventilators, intensive care unit beds and other resources that may be in limited supply.
While this bill appears to be a well-intended effort to protect the health care workers and entities working on the front lines to save lives during this pandemic, it is not difficult to see that the bill, as drafted, may be exploited for many loopholes.
Lawsuits will arise over the intended scope of immunity and whether the intended carve out for acts of “gross negligence” will be avoided by alleging that acts which would otherwise be described as ordinary negligence are acts constituting gross negligence. Lawsuits may also be filed by non-COVID-19 patients who claim to have become infected as a result of negligent infection control measures. There will also likely be lawsuits against Administrators and Medical Staff Directors for decisions during this time period which impacted the delivery of clinical care which plaintiffs contend are not included with the scope of the immunity.
While the bill was clearly intended to have sweeping, positive effect, like most legislation passed quickly and with little debate, the details of defining the scope of the broad legislative immunity and its exceptions will likely fall on the Courts with potentially inconsistent results. Lawsuits may also be filed over whether the legislature can lawfully make this immunity apply retroactively to acts of malpractice which have already occurred. Going forward, understanding and addressing the provisions of this bill is certain to be one more important aspect of the defense of many medical malpractice claims, if it is enacted into law.
We are closely monitoring this bill and all legal developments related to the COVID-19 crisis. If you have any questions about the bill or how the COVID-19 crisis may impact you or your health care facility, please contact us for a consultation.
For forty years, the lawyers at Dughi, Hewit & Domalewski, P.C., have represented doctors, nurses, and other healthcare professionals, as well as hospitals, nursing homes, and other health care facilities.
If your matter involves medical malpractice or nursing home liability, please contact Herb Kruttschnitt III at hkruttschnitt@dughihewit.com or Mark A. Petraske at mpetraske@dughihewit.com. If your matter involves other COVID-19 legal issues or concerns, please contact Craig A. Domalewski at cdomalewski@dughihewit.com.
The information is provided solely for information purposes. It should not be construed as legal advice on any specific matter and is not intended to create an attorney-client relationship. The information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based upon particular circumstances. Each legal matter is unique, and prior results do not guarantee a similar outcome.
Partners Craig Domalewski and Herb Kruttschnitt successfully obtained a dismissal with prejudice of a lawsuit filed against a nursing home by a former resident alleging negligence and fraud arising from an alleged improper referral to a home health care company. The firm thoroughly investigated the plaintiff’s allegations and, after establishing a factual record which refuted liability, vigorously defended the case and obtained a dismissal with prejudice for our client.
For forty years, Dughi, Hewit & Domalewski, P.C. has provided high-quality legal services to hospitals, nursing homes, physicians and other healthcare providers in a wide array of litigation, transactions, and regulatory matters.
Dughi, Hewit & Domalewski is proud to announce that it has added five attorneys to its civil litigation and trial team, including Mark Petraske and Herb Kruttschnitt as partners. Mark and Herb are highly-respected, experienced trial attorneys with outstanding records of courtroom success.
The firm is also pleased to announce the opening of a new office in Moorestown, New Jersey, to support our growth and to provide better service to our clients in South Jersey.
Shawna Bishop has also joined the firm as counsel. Shawna brings over seven years of experience and concentrates her practice on civil and complex litigation. Adam Ortlieb and William Meiselas have also joined the firm as associates. Both and Adam and William are experienced litigators and provide additional litigation support to the firm’s trial practice.
Dughi, Hewit & Domalewski is excited to add these five talented lawyers and the South Jersey office, which will allow us to continue providing our clients with the highest level of legal representation.
