Montana Signs COVID-19 Immunity Provision into Law

Written by: Sandra Mekita Cianflone, Esq.

On February 10, 2021 Montana Governor Greg Gianforte signed Senate Bill 65 which revises some Montana Civil Liability Laws surrounding COVID-19. This law is effective from February 10, 2021 through January 1, 2031. The rationale in passing this bill is to improve Montana’s economy and encourage people to engage in private sector activities.

Immunity

The new law provides immunity from liability for any injury or death from or relating to exposure or potential exposure to COVID-19. The exception to the immunity provision is when an act or omission constitutes gross negligence, willful and wanton misconduct or intentional torts.

Immunity is extended to the following persons:

• • Premises owners – a person who possesses or is in control of a premises
  • A person who designs, manufactures, labels, sells distributes or donates supplies and products in response to COVID-19
  • Health care professionals defines as physicians, physician assistants, nurse practitioners, nurses, nursing assistants, chiropractors, pharmacists, pharmacy technicians, dentists, dental hygienists, optometrists, medication aides, respiratory therapist practitioners, professional counselors, occupational therapists, midwifes, psychologists, and other health care practitioners who are licensed, certified, or otherwise authorized or permitted by the laws of this state to administer health care services.
  • Health care providers defined as a health care professional, health care facility, home health care facility, assisted living facility, and any other person or facility otherwise authorized or permitted by any federal or state law or guidance to administer services or treatment.

As it relates to health care providers, the immunity provided extends to death or injury caused or contributing to, directly or indirectly Screening, assessing, diagnosing, caring for, or treating individuals with a suspected or confirmed case of COVID-19;, by a health care provider’s acts or omissions while providing or arranging health care in support of the response to COVID-19. The immunity applies to injury/death resulting from:

• • Prescribing, administering or dispensing a pharmaceutical for off-label use for treating suspected or confirmed COVID-19;
  • Acts or omissions while providing care to individuals with a condition unrelated to COVID-19 when those acts or omissions were in support of the response to COVID-19, including: delaying or canceling nonurgent or elective procedures, diagnosing or treating patients outside the normal scope of a provider’s license/practice; using medical devices outside their normal use; conducting tests or providing treatment outside the premises of a health care facility; acts or omissions undertaken because of a lack of staffing, facilities, medical devices, equipment, supplies or other resources attributable to COVID-19; or, acts or omissions undertaken by a health care provider relating to the use or non-use of PPE.

Affirmative Defense

Section 6 of the new law also provides an affirmative defense for a person that took reasonable measures consistent with federal or state statute, regulation, order, or public health guidance related to COVID-19. If the defense is proven, it serves as a complete bar to any action relating to COVID-19, and does not serve to impose liability on a person who fails to comply with a regulation. Montana legislature was clear to state that a government order, regulation or public health guidance does not create a new cause of action against any person. By doing so, they are ensuring that the orders/regulations/guidance do not serve as a statutory standard of care.

Additional sections of the bill state that face masks, temperature checks, vaccines are not required to be performed or obtained to meet the standard of care.