Health Providers Need COVID-19 Biz Immunity Law

By Benjamin Fenton
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Law360 (September 1, 2020, 5:13 PM EDT) --
Benjamin Fenton
Benjamin Fenton
In July, Sens. John Cornyn, R-Texas, and Mitch McConnell, R-Ky., introduced the Safe to Work Act as part of the Health, Economic Assistance, Liability Protection And Schools Act "to lessen the burdens on interstate commerce by discouraging insubstantial lawsuits relating to COVID–19 while preserving the ability of individuals and businesses that have suffered real injury to obtain complete relief."

While many small businesses have praised the act for offering additional protections to susceptible entities, some trial groups are criticizing it for directly opposing the Constitution's Seventh Amendment, which provides for jury trials to hold companies accountable for the health and safety of U.S. citizens.

It makes sense that trial groups are up in arms. Page 11 specifically highlights the act's purpose to "prevent litigation brought to extract settlements and enrich trial lawyers rather than vindicate meritorious claims."

The act is packed with language to protect health care facilities, workers, personal protective equipment suppliers and employers, concluding with:

Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of transmitting demands for remuneration in exchange for settling, releasing, waiving, or otherwise not pursuing a claim that is, or could be, brought as part of a coronavirus-related action and that is meritless, the Attorney General may commence a civil action in any appropriate district court of the United States.

There would be a fine of $50,000 for each meritless claim.

This language will assuage an already frenetic group of business owners and health care professionals who are receiving sometimes mixed messages from government authorities on how to comply with ever-changing regulations. At its core, the act states that entities covered by the act need to make reasonable efforts to comply with guidance.

Coronavirus-related health care services, as defined in the act, refer to services rendered by a health care provider, and relating to (1) diagnosis, prevention and/or treatment of coronavirus; (2) assessment or care of confirmed or suspected cases of coronavirus; or (3) the care of an individual who is admitted to, presents to, receives services from or resides at a health care provider for any reason during the public health emergency period if the provider's actions or determinations concerning the individual are impacted in part or in whole by COVID-19.

Health care providers and professionals, including volunteers, like most professionals, are susceptible to lawsuits, some reasonable and some onerous. In a pandemic, "health care workers face the threat of lawsuits arising from their efforts to fight the virus." The act states that "they confront this litigation risk even as they work tirelessly to comply with the coronavirus guidance, rules, and regulations issued by local governments, State governments, and the Federal Government."

Health care professionals are first responders during a pandemic. They are tasked with saving lives, and they are often caught between a rock and a hard place, required to shelter in place while doing anything and everything to stop the virus' spread and save lives.

Doctors performing routine surgeries, such as colonoscopies, were mandated to push those aside to focus on an emergency. They scrambled for ventilators, trying to fix broken ones, wrestled for personal protective equipment and halted everything to free up operating rooms. As hospitals anticipate triaging care and continue to prioritize COVID-19 patients over patients with conditions considered to be less urgent, health care workers fear being sued for malpractice or negligence in an unprecedented time.

The American Medical Association has stated that without legislative protection, physicians could potentially face litigation for, "suspending elective, in-person visits and procedures; being assigned to provide care outside the physician's general practice area; rationing care because of equipment shortages including ventilators; encountering inadequate testing that could lead to delayed or inaccurate diagnosis; and delaying treatment for patients with conditions other than COVID-19."

In an era of frivolous lawsuits, it is entirely sensible that Congress would attempt to make it difficult to bring a lawsuit against health care professionals, who often have to act on the fly to limit the death rate.

About halfway through the 65-page act, Title I establishes exclusive coronavirus causes of action and liability limitations and requirements for both Subtitle A and B.

The first part of the act, Subtitle A, addresses lawsuits brought by plaintiffs facing potential for COVID-19 exposure in the course of interacting with a health care professional between Dec. 1, 2019, and Oct. 1, 2024, or the coronavirus emergency declaration is lifted (whichever comes first). It excludes criminal and discrimination claims.

In Subtitle A, it clearly lays out that plaintiffs must prove the health care worker was not making reasonable efforts to comply with governmental standards, and provides that acts, omissions or decisions resulting from a resource or staffing shortage are not considered gross negligence or willful misconduct.

If the defendant was not subject to mandatory standards, the defendant need only show it followed some set of applicable public health guidelines. If the entity is subject to multiple guidelines, it need only follow one. It allows plaintiffs to file coronavirus-related lawsuits in state or federal court and gives defendants the right to move their cases to federal court. Third-party liability in a COVID-19 exposure action would be limited to those with an obligation under general common law principles to control third-party acts and third-party agents.

The second part, Subtitle B, addresses liability limitations for health care providers, and exclusive cause of action for coronavirus-related medical liability actions, such as the need for convincing evidence of gross negligence and that the harm resulting in personal injury was directly caused by the gross negligence.

Much of the language in both Subtitles A and B are similar, including a one-year statute of limitations after the date of alleged harm, breach, or tort unless for fraud, concealment or presence of a foreign body. The exclusive causes of action preempt state laws, including common law, that more easily allow claims arising from coronavirus exposure. The allow plaintiffs to file coronavirus-related lawsuits in state or federal court, but gives defendants the right to move their cases to federal court.

Subtitle C of the act limits compensatory damages to economic losses incurred, subject to a court award of damages for a determination of willful misconduct. Punitive damages would also be limited to a determination of willful misconduct and an amount not to exceed compensatory damages. The amount of monetary damages would also be reduced by compensation received by other sources, for example, insurance or government reimbursement.

The act prohibits joint and several liability, instead requiring proportionate damages from each defendant. Under joint and several liability, if several defendants caused the harm, the plaintiff can collect the full judgment from any of them. It limits damages to economic losses, excluding punitive damages except in cases of intentional misconduct, and it preempts state laws allowing higher damages.

Subtitle D deals specifically with labor and employment laws, and exempts employers from liability under federal labor and employment laws for actions taken to comply with public health guidelines. It exempts businesses and employers from liability under federal accommodations law if they cannot offer requested accommodations because of coronavirus risk, and it prohibits lawsuits for injuries caused by workplace coronavirus testing unless the injuries resulted from gross negligence or intentional misconduct.

The COVID-19 pandemic has increasingly exposed health care providers to potential threats of liability. The act is meant to assure these providers that they can reasonably rely on the mandates and directives given to them by public health officials and state and federal officials. However, it does not give health care providers a blanket license to act negligently.

Particularly with regard to the ongoing controversy surrounding rationing of care, bias and discrimination based on age, disability, preexisting conditions, race or gender should never be permissible, and life-saving medical resources (i.e. ventilators) must always be ethically allocated.

The COVID-19 pandemic has shown a spotlight on triage guidelines across the country, and a growing number of states have begun to revise their guidelines in an effort to remove bias. The act will not protect physicians who are guilty of gross negligence or willful misconduct, but the tireless health care workers putting themselves at risk every day in order to fight the spread of COVID-19.

With this in mind, it is imperative that legal protections be granted to health care providers who are required to make difficult decisions about which patients will benefit most from treatment should resources become scarce. Physicians complying with the crisis standard of care, often in strained circumstances beyond their control, could potentially find themselves the targets of expensive, onerous lawsuits that would bankrupt hospitals and increase health care costs.

For example, a plaintiff may contend that a provider was negligent in pushing off an elective surgery or using sound medical judgment to ration care, but that provider would now be able to use the language of the Safe to Work Act to squash frivolous claims, prompting plaintiffs to pause and think before filing a lawsuit.

If we fail to provide COVID-19-related legal protections to health care providers, not only are we failing our heroes on the front lines, but we are also putting public health at risk by hindering doctors' ability to provide care in exceptional circumstances.

The act is under tremendous pressure from Senate Democrats, and it is hard to imagine the act passing in its current form. If it does, then many of the companies and professionals referenced in the exclusive causes of action will breathe a sigh of relief that, as long as they make their best efforts, they will be shielded from often debilitating litigation. If the act morphs, like most acts do from initial introduction, then we might see the shields shrink a bit to cover only those who can empirically prove that they are the target of a frivolous suit.

Benjamin Fenton is a partner at Fenton Law Group.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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