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COVID Liability Bill Update - Governor Signs Legislation Shielding Healthcare Providers and Others From Most COVID-Related Lawsuits

ABSTRACT: Missouri Governor Parson recently signed legislation that contains protections for healthcare providers, manufacturers, and other businesses from tort liability related to the COVID-19 pandemic.

As discussed in our June 1, 2021, blog post, the Missouri Legislature passed a COVID liability bill (SB 51) that contains protections for healthcare providers, manufacturers, and other businesses from tort liability related to the COVID-19 pandemic. On July 7, Governor Parson signed the legislation, which has an effective date of August 28, 2021.

Whether COVID-19 tort liability protections are reasonable and necessary is a hotly debated topic among various stakeholders, including the Missouri Chamber of Commerce, the American Medical Association, and trial lawyer organizations.  Proponents of the new law believe it is critical to the State's economic recovery and to stopping those who would seek to profit from the pandemic.  Opponents argue that the law will provide blanket immunity to negligent nursing homes and others who harm innocent Missourians.

As discussed in our December 21, 2020 blog post, Governor Parson has encouraged lawmakers to author this sort of tort liability legislation since at least November 2020, when he issued a written proclamation on the topic.  SB 51 passed the Missouri Senate in February 2021.  A key benefit of the bill to defendants generally is protection from suits stemming from COVID-19 exposures unless a plaintiff can show clear and convincing evidence of recklessness or willful misconduct and the exposure caused personal injury. 

There are protections in the bill specific to healthcare providers.  In the healthcare context, the bill states that “[a]n elective procedure that is delayed for good cause shall not be considered recklessness or willful misconduct.”  There is also a shortened limitations period for bringing a COVID-19 medical liability action.  Such an action “may not be commenced in any Missouri court later than one year after the date of the discovery of the alleged harm, damage, breach, or tort unless tolled for proof of fraud, intentional concealment, or the presence of a foreign body which has no therapeutic or diagnostic purpose or effect.” 

The bill also limits punitive damages in a COVID-19 related action to a maximum of nine times the compensatory damages.  However, § 510.265, RSMo. (2005), may provide greater protection to healthcare provider defendants, in that it limits punitive damages to $500,000, or five times the net amount of the judgment awarded to the plaintiff, whichever is greater.

SB 51 comes in the wake of the filing of thousands of COVID-related lawsuits nationally.  Missouri alone has seen more than 140 COVID-related suits since the start of 2020.  One potential unintended consequence of this legislation could be a sharp rise in COVID-related suits filed hastily in Missouri courts during the several weeks leading up to the August 28 effective date to circumvent the new law.  Should this occur, many of these suits could be meritless and lacking adequate pre-suit investigation. 

Missouri will not be alone in providing COVID-19 tort liability protections.  Other states have done so through executive order and/or legislative action.  In addition, federal liability protections are already available under the 2005 Public Readiness and Emergency Preparedness (PREP) Act, which provides immunity to certain defendants, including healthcare provider defendants in certain situations.

We will continue to monitor the implementation of this new law and its impact on our courts.