Pa. Senators Float COVID-19 Civil Immunity Bills

By Matt Fair
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Law360 (June 8, 2020, 6:11 PM EDT) -- Following weeks of pressure from industry lobbyists, a group of Republican lawmakers in Pennsylvania are moving forward with new proposals designed to extend civil immunity to health care facilities and other businesses for claims related to the COVID-19 pandemic.

The legislative push comes after Gov. Tom Wolf faced criticism for an executive order last month that shielded individual doctors, nurses and other providers from claims related to their treatment of coronavirus patients, but failed to extend similar protections to health care facilities and nursing homes.

But new bills and draft legislation floated in recent days would build on Wolf's order to provide immunity not only to health care facilities but also to businesses more broadly.

In a bill introduced on Monday by Sen. Pat Stefano, R-Fayette, businesses would receive broad immunity from claims of coronavirus exposure provided they engaged in good faith efforts to try to adhere to public health guidelines from state and federal officials.

"We must ensure these employers, who are already reeling from the economic downturn, are not put in positions where they are pressured to settle cases rather than defend potentially costly litigation, the outcome of which is uncertain," Stefano said in a memo seeking co-sponsors for his bill.

He said it was "likely" that the plaintiffs bar would target businesses with potential virus exposure claims.

The measure would not apply in cases of gross negligence.

Meanwhile, a measure introduced by Sen. Sen. Michele Brooks, R-Mercer, and five of her GOP colleagues on Thursday would give immunity to hospitals and nursing homes from medical malpractice and other negligence claims for treatment provided during any declared state of disaster emergency.

Brooks said in a memo seeking co-sponsors for the bill that the protections were vital to ensure that health care providers were able to nimbly respond to crises without second-guessing themselves.

"It is imperative that we provide adequate protections for our providers and workers," she said. "Flexibility is essential to provide the critical assistance and care required during this unprecedented emergency."

The bill would not apply to criminal liability, intentional torts or claims of gross negligence.

A third bill — introduced by Sen. Kristin Phillips-Hill, R-York, and Sen. Doug Mastriano, R-Adams, on Thursday — would extend beyond the health care sector to shield any business from both criminal and civil liability for claims related to their ongoing authorized operations during a declared disaster emergency.

The measure would also bar licensed professionals from facing any administrative sanctions for continuing to provide their services during disasters.

"The governor's lack of transparency to shut down livelihoods of business owners all across Pennsylvania has created great trepidation with the next steps in moving forward in a post-COVID-19 era," Phillips-Hill said in a statement to Law360 on Monday. "This legislation will extend liability protections to employers and employees as they navigate uncharted waters so they can operate without fear that their state license or permit will be revoked."

Both of the bills introduced on Thursday have been referred to the Senate Judiciary Committee.

Similar measures introduced in the Pennsylvania House of Representatives since the beginning of April are awaiting consideration in committee.

Representatives for the Senate Democrats did not immediately return messages seeking comment Monday afternoon.

Sud Patel, an attorney with Fanelli Evans & Patel PC who serves as head of the Pennsylvania Association for Justice, said that the bills were simply an effort to give special breaks to businesses.

"Pennsylvania law simply asks businesses to make an honest effort to protect their employees and customers – in this case, from a deadly disease – and says that those who don't even try can be held accountable," he said. "That's a reasonable standard most folks agree with, which is why the corporations pushing these bills are literally using made up fables and outright lies to scare or outrage people into giving up their rights. They need these fictions because the facts are clear, and these proposals are designed to only protect profits instead of people."

--Editing by Bruce Goldman.

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