COVID-19 Liability Concerns
Each day, thousands of people in the United States are contracting coronavirus. The virus is devastating families, stretching the ability of health care providers to help those who are sick, and crippling businesses and the economy. Manufacturers have ramped up production of medical supplies and protective equipment and are investigating treatment options and developing vaccines.
Some personal injury lawyers, however, view individuals exposed to COVID-19 as a large new pool of plaintiffs, and health care providers and businesses that aid in the response effort or provide essential services as defendants to cast blame. Personal injury law firms are already recruiting individuals to “sue now” even if they have not contracted the disease. The first lawsuits targeting health care providers, employers, retailers and other businesses for COVID-related injuries have been filed. Many more are to come.
States should proactively adopt legislation that distinguishes legitimate claims from no-injury lawsuits. States can place reasonable constraints on the types of lawsuits that pose an obstacle to the coronavirus response effort, place businesses in jeopardy, and further damage the economy. Our latest white paper explores tort liability concerns related to the COVID-19 pandemic and considers potential solutions.
We applaud governors who have issued executive orders to address liability concerns stemming from COVID-19. These executive orders generally rely on the governor’s authority under each state’s emergency powers statute to modify or suspend enforcement of state laws that pose an obstacle to the state’s ability to respond to a crisis. The risk is that this type of executive action has not been tested in court. Plaintiffs’ lawyers are certain to challenge the governors’ authority to provide this liability protection through use of emergency powers.
Concern for Manufacturers
Manufacturers are quickly making products to aid in the coronavirus effort. Lawsuits may target manufacturers of these critically needed supplies. Without legislative protection, companies are exposed to product liability lawsuits if a product is alleged to have a manufacturing or design flaw, or lacks sufficient instructions or warnings regarding the product’s risks or limitations.
Legislation can limit the liability of businesses that design, manufacture, sell, or donate protective equipment, medical devices, drugs, or other products for use by health care providers and facilities (and possibly the general public) in response to a declared public health emergency. It may also be worthwhile to consider whether this protection or similar protection should extend to businesses that provide property or services to aid in the coronavirus response, such as hotels or other facilities that provide space to treat COVID-19 patients.
Concern for Health Care Workers
Health care providers are bracing for a surge of medical liability actions related to care provided during the coronavirus.
Legislation should provide health care providers with greater discretion to make decisions about medical care without exposure to liability during a pandemic or other health emergency. Decisions should be made based on patient and public health, not fear of lawsuits.
Concern for Employers
Plaintiffs’ lawyers will attempt to circumvent the workers’ compensation system and bring tort lawsuits against employers for exposure to coronavirus at work.
For purposes of tort claims against employers alleging work-related injuries from exposure to coronavirus, legislation may provide that an employee can only file a claim outside the workers’ compensation system when an employer intended to injure an employee. A plaintiff would need to show clear and convincing evidence of a specific intent to harm an employee to proceed in the tort system. This approach may not be needed in jurisdictions in which courts consistently apply a similar high standard for work-related tort claims, restricting lawsuits to injuries that stem from truly intentional acts.