By Timothy D. Lytton
When pandemic response efforts are hampered by inadequate enforcement resources and political polarization, tort liability could, potentially, be a powerful public health tool. However, starting in the initial stages of the pandemic, tort reform advocates quickly secured for businesses sweeping immunity from negligence, thereby sidelining the tort system. In this blog post, I will describe why this represents a lost opportunity.
Neither the U.S. public health infrastructure nor American political culture support the kind of muscular central government mandates that have characterized the COVID-19 policies of many other countries.
The U.S. public health infrastructure has historically relied heavily on state and local authorities. In response to the COVID-19 pandemic, U.S. public health agencies at the federal, state, and local levels promulgated rules and guidelines to encourage precautions such as mask wearing and social distancing. However, these agencies typically lacked the necessary resources to monitor compliance, much less enforce mandates. Consequently, most jurisdictions relied on education rather than enforcement.
Ironically, although the public health response consisted primarily of unenforced mandates and nonbinding standards, public health policies nevertheless prompted vociferous opposition, featuring protests and litigation, alleging that the agencies’ actions represented heavy-handed government infringement of individual liberty.
When government efforts are hampered by inadequate enforcement resources and political polarization, the tort system can help by translating public health rules and guidelines into pervasive private incentives capable of influencing decisionmakers who are well-positioned to reduce the risk of disease transmission, including business owners, school administrators, elder care facility operators, and religious leaders. The tort system does this by articulating standards of reasonable care and exposing entities that fall short of these standards to liability. Tort doctrine defines reasonable care by reference to health and safety statutes, regulations, and guidance; considerations of cost effectiveness; industry customs and professional standards; and common sense.
In contrast to the limited monitoring and enforcement capacities of government public health agencies, fear of tort liability is pervasive and backed by the prospect of lawsuits filed by plaintiffs’ attorneys, who eagerly ferret out negligence whenever it causes enough harm to yield an acceptable contingency fee. The incentives created by liability exposure do not require a large volume of lawsuits. A few successful claims are often sufficient to provoke widespread anxiety about the risk of being sued, which motivates the adoption of reasonable precautions to reduce liability exposure.
Risk regulation through tort litigation requires no central coordination. A handful of high-profile plaintiff victories in scattered jurisdictions can send a powerful signal that prompts and shapes risk management efforts nationwide. Additionally, reliance on tort liability to regulate health and safety risks avoids provoking many Americans’ hostility to public health mandates. Liability exposure encourages precautions through economic incentives rather than administrative agency directives.
Unfortunately, tort reform advocates harnessed anxiety about the risk of being sued to advance legislation that shields negligent health care providers and business owners from liability. In the early months of the COVID-19 pandemic, tort reform advocates warned of a coming flood of litigation. The American College of Physicians asserted that “physicians and other clinicians face the threat of medical liability lawsuits,” and advocated unqualified “immunity from civil liability for harm . . . caused in the course of providing medical services in response to the COVID-19 outbreak.” Business groups cited an “emerging threat” of “unfounded lawsuits against them alleging that their customers and employees were infected with COVID-19.” Medical providers and business groups successfully lobbied for tort immunity in thirty-seven states via executive orders and legislation.
However, there was never any evidence to justify these laws.
By the end of April 2020, when tort reformers were making headlines with warnings of a coming “avalanche” of tort claims against businesses and doctors, 1,295 civil lawsuits had been filed nationwide related to COVID-19. Only two of those were personal injury claims by business patrons for COVID-19 exposure. Twenty-six were claims by employees against companies for inadequate protection from infection in the workplace, personal injury, or death. An additional thirteen lawsuits, a mix of medical malpractice and wrongful death claims, were filed against health care providers. Tort reform advocates produced no evidence of disciplinary actions against attorneys for frivolous litigation in any of these lawsuits, nor could they point to jury verdicts or settlements that were disproportionate to harms suffered.
To be fair, there are legitimate reasons to doubt that liability exposure is effective and efficient in reducing the risk of disease transmission. Empirical studies of tort liability for other risks to health and safety suggest that the general deterrent effects of liability exposure are highly context dependent. However, stoking unfounded fears of unwarranted litigation to justify broad immunity does not advance our understanding of whether tort liability can enhance efforts to combat the spread of contagious diseases. Before rushing to embrace tort reform in the future, it might be worth finding out.
Timothy D. Lytton is a Distinguished University Professor and Professor of Law at Georgia State University, where he is affiliated with the Center for Law, Health & Society. This blog post is excerpted and adapted from his article, Responsive Analysis: Public Health Federalism and Tort Reform in the U.S. Response to COVID-19, published in the DePaul Law Review and available on SSRN.