By Matt Fair

Law360 (May 28, 2020, 4:10 PM EDT) -- An alliance of Pennsylvania business and health care industry groups renewed its call Thursday for executive or legislative action to provide civil immunity to their members from claims related to their response to the COVID-19 pandemic.

Gov. Tom Wolf signed an executive order granting limited protection from malpractice suits to individual practitioners, but health care industry groups and leaders of the defense bar say the measure, which does not extend to health care facilities, doesn't go nearly far enough.

"Our hospitals, nursing homes and medical professionals should not have to make decisions and take action in the midst of a pandemic only to be second-guessed by lawyers once this is over," Pennsylvania Coalition for Civil Justice Reform executive director Curt Schroder said during a conference call alongside representatives from groups including the Hospital and Healthsystem Association of Pennsylvania and the Pennsylvania Chamber of Business and Industry.

He added that other businesses, which are gearing up to reopen as emergency restrictions across Pennsylvania are slowly eased, were also in need of protection in order to help goad the economy back to health.

"It's important that businesses be allowed to open with the certainty that they will not be liable for claims of COVID exposure," he said. "Having to open in the face of potential lawsuits over exposure claims will only serve to impede a badly needed economic recovery."

Wolf's executive order earlier this month put Pennsylvania alongside neighboring states New York and New Jersey in providing some form of protection from civil claims related to treatment and care of COVID-19 patients.

In legislation adopted in New York and New Jersey, however, immunity was extended not only to health care workers but also to health care facilities such as hospitals and nursing homes.

During their conference call on Thursday, Schroder and his allies said Pennsylvania needs to step up its civil liability protections in order to protect health care facilities from what he called "frivolous lawsuits."

"Frivolous lawsuits against hospitals and nursing facilities will line the pockets of the trial bar while accelerating fiscal distress and painful layoffs," said Andy Carter, who serves as president of the Hospital and Healthcare Association of Pennsylvania.

In addition to protecting health care facilities and nursing homes, however, the groups participating in Thursday's conference call also urged safe harbor for other businesses who are faced with the threat of reopening even as the tally of coronavirus cases and deaths continues to grow.

"Right now small business owners are at a decision point, and the decision is, do I risk everything I've built by opening myself up to lawsuits and liability, or do I make a decision to remain closed or perhaps even close my doors forever?" said Gordon Denlinger, the Pennsylvania state director for the National Federation of Independent Business.

The conference call participants stressed that the immunity they were seeking would be of a limited nature, and that it would not apply to potential claims of gross negligence or reckless conduct.

"This is not protecting the bad actors," Pennsylvania Chamber of Business and Industry president Gene Barr said. "If you're a bad actor, you fail to gain the safe harbor protection we're talking about in this."

A spokesperson for the governor's office did not immediately return messages seeking comment.

But Sud Patel, president of the Pennsylvania Association for Justice, a group representing trial lawyers in the state, said in a statement that business interests were attempting to "exploit" the COVID-19 crisis to push for their long-standing goal of broadened immunity from legitimate lawsuits.

"Those who lobby for and are beholden to big corporate interests have learned over the years to exploit every crisis possible to advance their self-serving interests," he said. "The bottom line is that businesses are not refusing to reopen post-pandemic for fear of lawsuits. That argument is a manufactured argument which looks to exploit the COVID-19 pandemic to convince legislators and the public that immunity is needed. All immunity does is protect bad actors at the expense of consumers and ordinary citizens."

--Editing by Haylee Pearl.

Update: This story has been updated with a statement from the Pennsylvania Association for Justice.

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