McConnell's red line is business liability protections. New York curbed liability too.
Emilie Munson July 31, 2020Updated: July 31, 2020 10:14 a.m.
WASHINGTON — As coronavirus deaths piled up in New York nursing homes, Brett Leitner, a trial lawyer in New York City, started receiving 30 calls a day from the families of nursing home residents who died all over the state, he said.
The families wanted to sue the nursing homes where their loved one died, believing the facilities failed to take adequate steps to respond to the virus. But new liability protections for nursing homes and other providers written into New York law this spring made that hard.
New federal liability protections pushed by Senate Republicans would further challenge such claims.
Legislation limiting lawsuits against businesses and health care providers during the pandemic is Senate Majority Leader Mitch McConnell's defiant "red line" during the coronavirus relief negotiations now embroiling Congress. McConnell has said no bill can advance without these protections for employers, warning that without them a tsunami of frivolous lawsuits will flood the country stymieing businesses' efforts to reopen and health care providers' efforts to fight a novel virus.
Democrats like Senate Minority Leader Charles E. Schumer and Sen. Kirsten Gillibrand, both from New York, have decried McConnell's proposal as a carte blanche for businesses that puts workers and possibly patients at risk.
Meanwhile, New York and many other states have already taken steps to curb these lawsuits, at least in the health care sector.
In early April, New York passed a state budget that included a meaningful, if little-noticed provision. The provision stated that hospitals and nursing facilities would be immune from civil and criminal liability for harm while providing care to a patient during the coronavirus emergency if the provider was issuing health care "in good faith" and "arranging for or providing" care in accordance with state and federal rules. Hospitals and nursing homes would not have liability if the harm was caused by willful or intentional criminal misconduct, gross negligence, reckless misconduct or intentional infliction of harm.
The provision was so broad that it blocked litigation against these health care providers for some malpractice unrelated to their handling of COVID-19 during the pandemic. Recognizing this, the state legislature voted on July 23 to partially repeal the protections and clarify that the immunity applies to the assessment or care of an individual with a confirmed or suspected case of COVID-19, among other changes. Gov. Andrew M. Cuomo has not yet signed this legislation.
Ron Kim, a Democratic assemblyman from Queens, a borough that has been particularly hard-hit by nursing home deaths, introduced legislation to fully repeal the immunity protections this spring, but the proposal has not received a vote.
Stephen Hanse, CEO of the New York State Health Facilities Association, which represents over 450 skilled nursing and assisted living facilities, said the protections ensure that health care provides "can truly focus on the provision of care and not have to worry and second guess."
"In this public health emergency, health care providers had to deal with constantly changing health care directives in the state [and] on the federal level," Hanse said. "As long as you're acting in good faith, you're doing everything you can to provide care, these liability protections are in place only during the declared time of the public health emergency... it's really important. Over history, it's not unique."
With the elderly and people in congregate facilities among the most vulnerable for the virus, 6,464 nursing home residents have died of confirmed or presumed COVID-19 in New York as of July 28, according to the state.
At least 25 states, the District of Columbia and Puerto Rico have provided some level of immunity for health care workers and/or facilities during the pandemic through executive or legislative action, according to the National Conference of State Legislatures. Ten states, Puerto Rico and the District of Columbia passed laws providing liability protections specifically in response to COVID-19.
Only 70 health- or medical-related lawsuits have been filed in response to coronavirus across the country, according to the law firm Hunton Andrews Kurth, which is tracking COVID-19 complaints. New York has had five of these health complaints filed in courts to date, the firm found.
"I actually think the liability risk is not that high," said Michelle Mello, a professor of law and medicine at Stanford University, who studies among other things medical malpractice litigation. "The real source of problems may be claims by health care workers against facilities rather than claims by residents and patients ... I don't think that most of these people are going to find redress in our legal system anyway. It's really hard for people to access the civil justice system for tort claims."
Leitner said he has been retained to represent clients in 150 different coronavirus nursing home death cases. Many of those have not been filed yet because an administrator must be appointed by a Surrogate court first.
Because the state law blocks cases regarding health provider actions after March 7, Leitner is trying to prove the nursing homes had inadequate infection control procedures in place before March 7. One of his clients, Vivian Zayas, is suing a Long Island nursing home where her mother died after the nursing home was cited prior to the pandemic for failing to have proper infection control procedures in place.
At the federal level, McConnell aims to take liability protections farther. Sen. John Cornyn, R-Texas, introduced the Safe To Work Act on behalf of the GOP caucus this week, legislation that would bar any plaintiff with a coronavirus medical case from suing under state law and require them to take their case to federal court.
The plaintiff would have to provide clear evidence that the employer engaged in gross negligence or willful misconduct, not caused by a resource or staffing shortage. It sets a one year statute of limitations on the cases.
"It changes the standard of care that would lead to a liability finding from our ordinary standard, which is preponderance of the evidence, to gross negligence," said Mello. "It is a much harder standard to prevail on, and particularly in this context where you had a lot of things evolving pretty rapidly, in terms of businesses understanding of how the virus is transmitted, how much of a danger it poses and so forth. I think that makes it an especially difficult context in which to prove that somebody behaved willfully and wantonly, as opposed to just stupidly."
Critically, the Safe to Work Act would also protect other kinds of non-health care employers, including non-profits and schools. Any plaintiff who wanted to sue a business because he contracted coronavirus from working, shopping or learning there would have to prove that the business did not make reasonable efforts to comply with federal guidance on the virus and the business' actions caused the plaintiff's illness. If the business has a written policy the complies with government health policies, it would be presumed to be in compliance. It would also have a shorter one-year statute of limitations for these personal injury cases. The legislation would be a five-year shield for health care providers, businesses and schools, from Dec. 1 2019 to at least October 2024.
Across the country, 74 lawsuits regarding workplace conditions have been filed against employers, Hunton Andrews Kurth's complaint tracker shows.
“As states gradually reopen their economies, frontline health care workers, small businesses, and schools face a second pandemic of frivolous lawsuits threatening to bankrupt them,” Cornyn said. “This legislation would protect those acting in good faith from being sued into oblivion while ensuring bad actors who willingly put their patients, employees, or customers in danger will still be held accountable.”
Democrats object to the protections. Gillibrand said lawmakers should shore up Occupational Safety and Health Administration standards instead.
"There is a standard of care that is due to every worker in America," said Gillibrand. "If we write standards under OSHA for example, requiring PPE, requiring social distancing, requiring people to take their temperature before they come into the workplace, those are common sense and I would expect every workplace would follow that. If they don't, then they're being negligent... blanket liability is not appropriate and I believe is immoral."
The Trump administration has backed away from regulating industry and strongly enforcing labor standards through OSHA, Mello said.
Senate Republicans' HEALS Act would also encourage more virus testing at nursing homes, involve the U.S. Department of Health in reporting nursing home COVID-19 cases and send in federal "strike teams" to support state teams with medical examinations and infection control at facilities.