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RI HEALTH

McKee issues executive order protecting hospitals, health care workers from civil damages

The executive order, which was not publicly announced, comes as an increase in COVID hospitalizations and staff shortages put enormous strain on the state’s health care system

Governor Daniel J. McKee announces expanded emergency shelter capacity during a news conference at the Rhode Island Coalition to End Homelessness offices in Pawtucket, Rhode Island.Edward Fitzpatrick

EAST PROVIDENCE, R.I. — Governor Dan McKee has issued an executive order protecting hospitals and medical staff from civil damages if the level of care they’re able to provide has been affected by staffing or supply shortages.

The executive order issued last week, which was not publicly announced, comes as an increase in COVID hospitalizations and staff shortages put enormous strain on the state’s health care system and threaten the quality of care patients would normally get.

“Healthcare workers in all areas of operations are going above and beyond to compassionately care for the influx of patients seeking care and treatment in our hospitals as a result of rising COVID infections, as well as other health-related issues,” Dr. James Fanale, president and CEO of the Care New England Health System, said in an e-mail. “The new executive order does not provide hospitals and medical professionals with immunity from willful misconduct, gross negligence, or bad faith. It does, however, offer some limited protection to hospitals and staff, who are working in an environment that is unprecedented, including staffing shortages, and limited resources, during a pandemic.”

Medical professionals have issued increasingly dire warnings about the state of Rhode Island’s hospitals. Its largest is seeing crisis levels of care in its emergency department and intensive care units. Not every patient who would have been sent to an ICU in the past can now get a bed, a top doctor at Rhode Island Hospital said recently. Globe Rhode Island’s recent visit to Care New England’s Kent Hospital revealed an weary and wary staff two years into a pandemic — an emergency department out of ideas, and an intensive care unit filled with unvaccinated patients.

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The system, people who work inside it say, is on the brink of disaster — if it’s not already there.

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McKee’s executive order addresses concerns from hospitals, doctors, and nurses that they’ll be sued just by working under a system that can’t provide the sort of care that used to be commonplace in 21st century America.

One of the contributors to the staffing problems in hospitals is the fear of getting sued for working in these sorts of disaster conditions, according to local health care leaders. Few would travel to Rhode Island to practice medicine that’s below the standard of care without liability protections, Dr. Nadine Himelfarb, the president of the Rhode Island chapter of the American College of Emergency Physicians, wrote in a letter to McKee and the Health Department earlier this month.

McKee acknowledged those sorts of concerns in his executive order.

“Such concerns in this environment place an undue burden upon health care providers that inhibits their ability to continue serving the needs of the citizens of the state,” McKee wrote.

McKee’s executive order was signed on Wednesday. McKee had previously said he was considering issuing an order on immunity, but at the time said it wasn’t a sure thing. A similar order was in effect earlier in the pandemic, but had since expired. This one is in effect through January 18.

It protects licensed hospitals and those hospitals’ health care workers from civil damages over the level of care they’re able to provide — but only if they’re acting in good faith. It doesn’t protect against willful misconduct, gross negligence, or bad faith.

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Hospitals and their health care workers will only have protection if the level of care they’re able to provide has been affected by staffing shortages; if they have to do something that goes beyond the scope of their credentials; if they use triage protocols or resource rationing; if they use supplies and equipment differently from how they normally would; if they comply with limits on nonessential or elective services; and if there aren’t enough ventilators, medication, blood products, personal protective equipment, or hospital beds.

The move stirred opposition among some progressive politicians in the state.

“Instead of protecting US they are protecting themselves from the systems they won’t fix,” wrote state Senator Tiara Mack, a Democrat of Providence, in a Twitter post.

Hospitals have also proposed significant and immediate changes to the way ambulances are dispatched in the state. That has not happened, and some leading doctors have expressed frustration about the slow pace of the state’s response.


Brian Amaral can be reached at brian.amaral@globe.com. Follow him on Twitter @bamaral44.