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Licensure & Liability Concerns for Physicians, Other Healthcare Professionals, Medical Residents, and Students During the Ongoing COVID-19 Pandemic

On Behalf of | Mar 30, 2020 | Articles

By Jessica Woodrow, Esq.Email the Author

the COVID-19 pandemic continues and New Yorkers adjust to mandatory
social distancing measures, many healthcare providers across the state
have expressed concerns about licensure, both generally and about scope
of practice and liability issues in particular. In response to the
ongoing emergency, Governor Cuomo has signed a series of Executive
Orders related to the provision of essential medical services.

Under Gov. Cuomo’s Executive Orders 202.2 and 202.10:

physicians, physician assistants, specialist assistants, nurse
practitioners, licensed registered professional nurses, and licensed
practical nurses shall be immune from civil liability for any
injury or death [allegedly sustained] directly or as a result of an act
of omission [in the course of providing care in support of the COVID-19
emergency] unless it is established that such injury or death was caused
by [] gross negligence.”

Students in programs to become licensed healthcare professionals are permitted to “volunteer” at healthcare facilities for
credit, as if the student had secured the placement under a clinical
affiliation agreement, without entering into any such agreement;
this would appear to apply to residents as well, who are covered under
the now-suspended applicable Education Law.  Note that this portion of
the Order should alleviate concerns that students will have to repeat
portions of their training/residencies if they participate in ongoing
emergency efforts.

According to the Tier 2 support staff at the
NYS coronavirus hotline, the Education Law is suspended to the extent
necessary to permit unlicensed people, upon completion of training, to
obtain swabs for covid-19 testing; to the extent necessary, unlicensed
nurses who haven’t completed training to do nursing work may do so under
supervision of nursing staff within the scope of practice of a licensed nurse. Relatedly,
Subdivision 4 of Section 6909 of the Public Health Law, Subdivision 6
of Section 6527 of the Education Law, and Section 64.7 of Title 8 of the
NYCRR are all suspended to the extent necessary to permit physicians
and nurse practitioners to instruct others to swab COVID-19 patients for purposes of testing or to perform other tasks as necessary to provide care. Tier 2 support staff confirms that this guidance, in combination, allows students and residents to practice medicine and
allows licensed physicians to tell them to do so, all without fear of
compromising current or future licenses to practice in their chosen

Additionally, recordkeeping requirements are temporarily
suspended insofar as immediate action is required to provide care
related to the outbreak. Such actions, if taken reasonably and in good
faith, “shall be afforded absolute immunity from liability for any failure to comply with any recordkeeping requirement.”

advanced practice registered nurses with a masters/PhD specializing in
anesthesia, physician assistants, special assistants, and nurse
practitioners are permitted to practice without oversight by a supervising physician.

you are a healthcare provider with questions regarding evolving
emergency practice concerns, please contact David Zarett or Jessica
Woodrow at 516-627-7000 or [email protected]