By: Samantha M. D’Anna
Now that parts of society are planning to begin the first phase of reopening, policy makers are considering what legal and regulatory obstacles businesses and healthcare providers might face. On Tuesday, U.S. Senate Majority Leader Mitch McConnell said a “condition” for the next coronavirus bill must include liability protections for businesses and hospitals.1
“My red line going forward on this bill is we need to provide protection, litigation protection, for those who have been on the front lines,” he said during an interview with Fox News’s Neil Cavuto, “[w]e can’t pass another bill unless we have liability protection.” 2
Cavuto asked McConnell whether providing liability protection could have an adverse effect, making companies feel legally bulletproof and causing them to skimp on safety measures. McConnell replied that any legislation would have to be carefully crafted by the states, which only would receive the federal money if they provide liability protection.
On Wednesday, House Speaker Nancy Pelosi rejected McConnell’s proposal, “[e]specially now, we have every reason to protect our workers and our patients in all of this. So we would not be inclined to be supporting any immunity from liability.”3
While Republican lawmakers have yet to present any legislative language detailing what liability protections would look like, the U.S. Chamber of Commerce recently issued a letter, titled “Implementing a National Return to Work Plan,” which outlines legal and regulatory issues the organization believes needs to be addressed.4 It discusses concerns related to discrimination, independent contracting, and health privacy, among other topics. It also includes a section on what the Chamber considers “perhaps the largest area of concern for the overall business community,” exposure liability.
The Chamber specifically addresses the “increasing concern about medical liability claims being brought against healthcare providers and facilities caring for COVID-19 patients.” For example, the plaintiff’s bar may bring claims arising out lack of care due to equipment shortages, mistakes allegedly resulting from long hours or lack of staffing, or decisions made by healthcare providers related to who does and does not receive specific types of treatment. Lawsuits may also be brought against nursing homes or assisted living facilities for allegedly failing to protect residents from contracting COVID-19. Additionally, non-COVID-19 patients may bring claims arguing they did not receive the appropriate standard of care due to the influx of COVID-19 patients that a healthcare facility or provider was required to treat.
While the CARES Act provides some liability protection for volunteer healthcare providers caring for COVID-19 patients, the Chamber proposes that “the language should be expanded to include all healthcare providers and facilities (not just volunteers). In addition, significant state-level COVID-19 medical liability statutes, such as one New York recently enacted, could serve as a model for a preemptive federal fix in this area.”
The Senate is expected to return to the Capitol May 4, while the House will continue to work remotely. House Majority Leader Steny Hoyer announced the House would not be returning to Washington, upon recommendation of the Capitol attending physician. The Senate will still reconvene, as McConnell has argued that members of Congress should be considered essential workers.
2 https://www.foxnews.com/media/mcconnell-coronavirus-aid-bill-senate-liability-protection
4 https://www.uschamber.com/coronavirus/implementing-national-return-to-work-plan#liability