Parson's Pandemic Protections for Providers - Governor Parson Encourages Tort Liability Legislation During COVID-19 State of Emergency

ABSTRACT: Governor Parson recently issued a written proclamation encouraging lawmakers to author new tort liability legislation insulating defendants from lawsuits arising out of the conditions in the state of emergency that have existed since March.

Introduction

On November 12, Governor Parson issued a written proclamation encouraging lawmakers to author new tort liability legislation insulating defendants from lawsuits arising out of the COVID-19 state of emergency that has existed since March. This effort is designed to allow these individuals and entities to continue to serve the public without threat of unnecessary and frivolous litigation. We have since learned that the Missouri legislature is not likely to address this issue until early 2021. Governor Parson seems to have reconsidered the timing for the agenda and directed the legislature to address this, not during the ongoing special session, but during the regular January session. The bill will be titled SB1.   

In the statement, the Governor explained one of the main purposes of this action is to assist healthcare providers who have gone well beyond normal duty to provide exceptional care to Missourians despite great personal risk to their own health and well-being by amending and expanding upon § 44.045, RSMo, to afford liability protections for healthcare workers who provide necessary care during a declared state of emergency.  Though not dealt with here, the Governor’s proclamation also identifies other organizations instrumental to COVID-19 response efforts, including product manufacturers and premises owners like schools and churches that provide fundamental societal functions. This potentially includes a new Section in Chapter 537, RSMo, to provide products liability protection for product manufacturers, designers, distributors, and sellers involved in bringing products to market in direct response to a state of emergency. It also potentially includes a new section to provide premises liability protection for exposure claims arising from a declared state of emergency. 

Why Is This Necessary?

The threat of COVID litigation is real. There have been an estimated 10,000 COVID-related lawsuits filed nationally. This includes hundreds of healthcare specific suits and is almost certain to continue well into the next year and beyond.    

The risk to healthcare workers is real too. As of December 21, there were almost 17.8 million COVID cases and more than 315,000 deaths in the U.S. Healthcare workers make up a significant portion of nationwide COVID-19 infections. As of July, there were 100,000 cases of COVID-19 infecting healthcare workers. By September 2020, more than 1,700 U.S. healthcare workers had died from COVID-19. Per the CDC, healthcare workers make up approximately 6% of adults hospitalized with COVID-19. Among those, 36% were in the nursing field, and 28% were admitted to an ICU. Sixteen percent required invasive mechanical ventilation, and 4% died. 

None of this is surprising considering healthcare workers are on the frontline of battling this global pandemic and, in doing so, expose themselves to great personal risk each shift providing exceptional care for their communities. They must deal with the challenge not only of exposing themselves to the virus, but also observing terrible suffering and outcomes of their patients, and doing this with limited resources, equipment and healthcare staff. The author of this blog believes prudent legislative action is necessary under the circumstances and likely to be helpful in mitigating some litigation risk for healthcare professionals. 

A National Approach to Liability Protections

Missouri is not the only state to consider such liability protections. Other states have provided this through executive order and/or legislative action. For example, the neighboring states of Arkansas, Iowa, Illinois, Kansas, Kentucky, and Oklahoma have already passed COVID liability protections. Many of these states’ protections afford immunity from civil damages for licensed healthcare providers but carve out exceptions for injuries or death caused by gross negligence, willful and criminal misconduct and intentional infliction of harm, and fraud. 

Although there was much discussion during negotiations for a federal COVID-19 relief package as to whether it would include liability protections for healthcare providers and other businesses, in the end, no such provision was included in the $900 billion program. Though not dealt with in detail here, federal liability protections are already available under the 2005 Public Readiness Emergency Preparedness (PREP) Act, which authorizes the Secretary of the US Department of Health and Human Services to issue a declaration in response to a public health emergency. On March 10, 2020, Secretary of HHS Alex Azar issued such a declaration, effective February 4, 2020, which provides immunity to “covered persons,” such as healthcare providers, using certain “covered countermeasures,” including masks, respirators, and vaccines, that are necessary to combat the public health emergency.      

The Missouri Chamber of Commerce and industry stakeholders overwhelmingly support these protections. The American Medical Association has pushed for states to pursue liability protections for healthcare professionals during the COVID-19 emergency. However, this is not without criticism, with some suggesting such policies would protect irresponsible businesses from accountability and fail to protect the public.   

It is important to note that the anticipated liability protections parallel “good Samaritan” laws that have existed throughout the country for decades and afford qualified immunity from civil liability for healthcare professionals who volunteer their services as a generous compassionate act unless they engage in willful or intentional misconduct. 

We will continue to follow this issue and look for activity during the January 2021 general legislative session.