By Y. Peter Kang

Law360 (August 13, 2020, 8:29 PM EDT) -- Republican lawmakers' call for a probe of the St. Louis prosecutor who charged an injury lawyer couple for pointing guns at protesters and three states' moves over coronavirus injury legislation lead Law360's Tort Report, which compiles recent personal injury and medical malpractice news that may have flown under the radar.

GOP Congressmen Claim 'Rogue Prosecutor' Wrongly Charged Atty Couple

Seventeen GOP members of Congress have urged the Justice Department to investigate the "rogue prosecutor" who brought felony criminal charges against husband-and-wife attorneys who run a prominent St. Louis personal injury firm and brandished guns at marching protesters in late June.

Led by Rep. Jodey Arrington, R-Texas, the lawmakers said Mark T. McCloskey and Patricia N. McCloskey, partners at the McCloskey Law Center, were wrongly charged with one count of unlawful use of a weapon by St. Louis Circuit Attorney Kim Gardner. The group penned an Aug. 6 letter to Attorney General William Barr asking him to conduct a probe of Gardner, whom they claim "trampled" the couple's Second Amendment rights.

"We urge you and the Department of Justice to investigate Ms. Gardner's actions, and the actions of every rogue prosecutor who fails to uphold the rule of law and secure the rights of our citizens," the letter states. "Americans deserve to know exactly how public officials are abusing their power by harassing individuals exercising their rights and failing to enforce laws against trespassing, destruction, and violations of private property."

Gardner announced the charges July 20, saying, "It is illegal to wave weapons in a threatening manner at those participating in nonviolent protest."

The Black Lives Matter protesters were on their way to demonstrate in front of Mayor Lyda Krewson's home to demand her resignation when the McCloskeys came out of their home, with Mark McCloskey holding a semi-automatic rifle and Patricia McCloskey holding a semi-automatic handgun, according to reports from a St. Louis Metropolitan Police Department officer that were attached to the charges.

Numerous photos and videos posted to Twitter show the couple exchanging shouts with protesters while pointing the weapons at them. In one video, Mark McCloskey can be heard shouting, "Private neighborhood! Get the hell out of my neighborhood!"

COVID-19 Immunity Legislation Updates From Mich., Miss. and Tenn.

Following a special legislative session, the Tennessee General Assembly on Aug. 12 approved a bill backed by Republican Gov. Bill Lee that would shield businesses, health care providers and schools from coronavirus-related injury suits.

If signed into law by Lee as expected, the Tennessee COVID-19 Recovery Act will require a plaintiff to prove, under a "clear and convincing" evidence standard, that a defendant caused a person's coronavirus-related injury or death due to gross negligence or willful misconduct. The bill also requires a plaintiff to file a certificate of merit from a medical expert essentially vouching for a claim.

The law would be retroactive to Aug. 3 and remain in effect until July 1, 2022.

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Democratic Michigan Gov. Gretchen Whitmer vetoed a bill Aug. 10 that would've provided broad liability protections for health care providers during the state's health emergency.

S.B. 899 called for civil immunity for medical professionals such as doctors, nurses and paramedics, as well as health care facilities such as hospitals and nursing homes for any treatment impacted by the COVID-19 pandemic. Cases involving gross negligence or willful misconduct were not covered.

Whitmer said the bill was an "overbroad attempt" to fix a problem created by the Republican-majority Legislature, and renders injured patients powerless to seek legal redress in all but the most egregious cases.

"Senate Bill 899 would endanger patients and workers unnecessarily, making it nearly impossible to obtain relief from injury during a state of emergency," Whitmer said in a statement.

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Mississippi has enacted a law that shields businesses and health care providers from civil liability for coronavirus-related injury and wrongful death suits.

The Mississippi Back-to-Business Liability Assurance Act, which was approved by Republican Gov. Tate Reeves in July, grants broad immunity to premises owners, health care providers and schools who make good-faith efforts to adhere to applicable public health guidelines.

The immunity does not apply if a plaintiff can prove, under a clear-and-convincing evidentiary standard, that a defendant acted with actual malice or willful and intentional misconduct, according to the law. The act is retroactive to March 14 and will expire one year after the end of the state's public health emergency.

NY Extends Child Victims Act's 'Look Back Window'

New York Gov. Andrew Cuomo on Aug. 3 signed legislation providing another extension to the so-called "look back window" for the Child Victims Act. The window is essentially a grace period which allows people of any age to file a civil suit over child sexual abuse that may have occurred decades ago.

The Child Victims Act went into effect Aug. 14, 2019, and allows people who allegedly experienced child sexual abuse in New York to file a civil claim any time before the age of 55, up from the previous cutoff age of 23. The look back window was set to expire Aug. 14, 2020, but Cuomo had issued an executive order in May extending the window to January 2021.

The recently enacted legislation, which extends the window to Aug. 14, 2021, now provides even more breathing room to people who have not been able to file suits due to difficulties related to the pandemic.

"As New York continues to reopen and recover from a public health crisis, extending the look back window is the right thing to do and will help ensure that abusers and those who enabled them are held accountable," Cuomo said in an Aug. 3 statement.

Calif. Damages Cap Ballot Initiative Certified for 2022

A ballot initiative asking California voters to significantly increase the state's cap on pain-and-suffering damages in medical malpractice cases has officially made it on the November 2022 ballot, a consumer advocacy group announced in July.

Consumer Watchdog said July 22 that it has collected 900,000 signatures — well over the 623,000 it needed — and raised more than $4 million in its efforts to raise the $250,000 cap on noneconomic damages that was put in place as part of the state's 1975 adoption of the Medical Injury Compensation Reform Act.

The group, which says the cap has never been adjusted for inflation, is seeking to raise it to about $1.2 million. Consumer Watchdog had previously sought to have the ballot initiative presented to voters in November, but announced in May that due to the coronavirus pandemic it would postpone the initiative by two years.

"COVID-19 has put the many racial disparities in our society front and center," said Charles Johnson, a Consumer Watchdog board member and head of the ballot initiative campaign. "This ballot initiative is in large part about fixing a system that does not provide primarily black and brown families with a fair day in court when they face gross medical negligence."

The group's proposal contains a provision that would allow judges and juries to decide whether to waive the cap in cases involving catastrophic injuries or death. Currently, juries are not told of the existence of the cap.

Calif. Justices Could Carve Out Med Mal Damages Cap Exception

The California Supreme Court could create an exception to the $250,000 noneconomic damages cap after it agreed to review a dispute over whether the cap applies when a physician assistant provides negligent treatment without direct physician supervision.

In March, a split Court of Appeal panel upheld a Los Angeles County judge's post-trial decision to slash a $4.25 million noneconomic damages award to $250,000 in a suit accusing two physician assistants of failing to timely diagnose malignant melanoma in Marisol Lopez's daughter, which caused her death at age 4.

Lopez had argued that the two physician assistants acted outside the scope of services for which a health care provider is licensed because they provided medical care without any physician supervision, in violation of California statutes and regulations. She contends that because they weren't acting within the scope of their licenses, the state's $250,000 noneconomic damages cap is inapplicable.

The appellate panel disagreed and created a bright-line rule, concluding that a physician assistant can be considered acting within the scope of his or her license "if he or she has a legally enforceable agency agreement with a supervising physician, regardless of the quality of actual supervision."

The state high court agreed to review the case July 29.

The case is Lopez v. Ledesma, case number S262487, in the Supreme Court of California.

--Editing by Kelly Duncan.

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