Like Virus Itself, Future of Malpractice Liability Is Uncharted

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During a pandemic, where contagious people crowd spaces shared with the uninfected or the healthy, concern over liability is heightened, writes Brandi Buchanan of Courthouse News Service.

Expecting malpractice lawsuits to grow as the pandemic continues, the American Tort Reform Association published a white paper this month with its concerns and recommendations for states as policy and Covid-19 litigation intersect. 

Tiger Joyce, the tort-reform group’s president, supports Sasse’s legislation. In an interview, Joyce said he would like to see similar language applied in the upcoming Covid-19 economic relief bill, which will be the fourth CARES Act as the packages are known. 

Sasse’s expansion could be a balm for health care workers who fear legal repercussions as they try to do their jobs under extraordinary conditions, Joyce said. 

But executive orders from state officials raise other questions.

Take Georgia Governor Brian Kemp’s executive order that limits liability for staff, employees and contractors at medical facilities during the pandemic while leaving immunity off the table for injury caused by gross negligence and willful misconduct. 

“That’s the appropriate step because it is essentially conferring emergency management worker status on people treating patients,” Joyce said. “It calls for elevated standards and a willful standard, which is a fairly high bar because it suggests a level of intention as opposed to error or just a mistake.”

Joyce thinks these moves will be challenged in court, just as groups have challenged orders from Texas and other states to suspend abortions during the pandemic. In Pennsylvania, businesses unable to topple an executive order to shutter operations that are “non-life-sustaining” now seek U.S. Supreme Court relief.

Governor Thomas Wolf’s reply brief is due Monday.

“The question is whether [the lawsuits] will come in six months from now or a year from now,” Joyce said. 

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