Tort Immunity Debates in a Pandemic Age
Posted Friday, January 1, 2021 by Chris Thayer
With the COVID-19 pandemic still raging across the country, even as the vaccinations are slowly being doled out, state and federal legislators continue pushing for tort immunity for healthcare providers. This is not a new rallying cry. Tort reform has long latched on to health emergencies and other unforeseen national disasters in attempts to expand protections for the healthcare industry. But this time may be different, and Seattle trial lawyers may well have to get used to a new reality when trying to fight for justice.
*What is Tort Immunity, and Why is it Being Introduced Now?*On state and federal levels, there are discussions about providing absolute protections for healthcare workers and healthcare companies because of COVID-19. In other words, if you or someone you love go to a hospital or doctor’s office and contract the virus and become severely ill or even die, you may have no available recourse. What is more, if that healthcare provider entirely blew off their obligations and ignored basic safety and infection control protocols, under some proposed plans, you would have to just deal with it, as you would have no option to sue.
*Tort Immunity Debates at the National Level*As early as May of 2020, the Chamber of Commerce was already pressing for immunity for businesses in light of COVID-19. Per a May 27, 2020 press release, the Chamber cited fear of lawsuits as part of the motivation behind their position. Of course, there is little evidence of widespread litigation in the wake of COVID-19. In fact, it is more likely that typical rules and laws pertaining to negligence will continue to apply, just as with all claims against healthcare workers and providers. Consider, for example, what would happen if someone attempts to file a lawsuit against a healthcare provider for contracting the virus.
- Duty - No different from any other claim, a plaintiff will still have to prove that the defendant healthcare provider owed them a specific legal duty to protect them against contracting the virus.
- Breach - Again, no different from usual, a plaintiff will still need to prove the healthcare provider failed to do something or acted in some negligent or reckless way.
- Causation - This is the more controversial aspect of suing during COVID-19. The plaintiff in such an action would still need to be able to prove that the provider’s actions were the direct cause of contracting the virus.
*The Unique Challenges of Proving Causation for a Virus*Viruses are, in general, very contagious. Even in an isolated environment like a nursing home, it would be quite challenging to effectively prove who gave a resident the virus and how. This could take on a lot of potential variations of the usual negligence claim. Perhaps a provider failed to exercise reasonable infection control precautions, leading to an outbreak on a particular wing of a hospital or nursing home. Even in this scenario, a plaintiff would still likely need to show that it was the provider’s negligence that specifically caused them to contract the disease.
*Arguments Against Tort Immunity*At first glance, some may think that immunity for healthcare professionals is a good thing. However, numerous consumer and patient advocacy groups oppose the move, for fear of what it could mean. In fact, as one open letter from advocacy groups to House and Senate Leadership explained it, these calls for tort immunity are “premised on a false choice between the return to a healthy economy and allowing businesses to be held accountable if their carelessness causes people to get sick.” The letter, which was co-authored by Consumer Reports, National Association of Consumer Advocates, and several other groups, went on to explain that the Chamber and various healthcare companies were not genuinely trying to avoid going bankrupt or prevent wildly frivolous lawsuits, but rather, they were nothing more than shameless attempts to use the widespread fear of the American people in order to sneak by a self-serving free pass. Finally, the letter addressed the unmistakable fact that many of the companies and industries most vocal about immunity are those that have been crying for tort reform for years, despite chart-topping profits year after year.
*Help for Everyday Washingtonians Who are Injured*No two injuries are the same, and not every injury is something for which you can sue for compensation. However, when healthcare providers and other large companies make reckless or careless decisions, fail to follow procedures, ignore public health warnings, or otherwise act irresponsibly during a pandemic, there ought to be some accountability. People who lose loved ones because of these careless decisions should have the right to collect compensation for their losses.
If you or a loved one has been affected by a serious personal injury, it is time to talk to an attorney before it is too late. Strict deadlines apply, plus you never know when Congress or the State of Washington will close up liability, leaving you and those you care about out of luck for good. Call or visit Pivotal Law Group today to learn more.