A man holds a shield in his hand.

The Pathology (and Politics) of Liability Shields

By Nicolas Terry

Over one million Americans have died from COVID-19, while 20 percent of those who survive may develop post-COVID conditions. With weak safety net policies and high health care costs it would hardly be surprising if our fellow citizens tried to shift some of their COVID costs to arguably responsible defendants.

For example, lawsuits could have emerged against either businesses (or their employees) alleging negligent failure to mitigate (e.g., vaccinate, mask, or even implement hygiene theater policies), or against health care providers for failures in the professional standard of care (e.g., failure to amass/provide adequate numbers of personal protective equipment or ventilators).

However, the predicted litigation explosion has not materialized. In its stead (and without any apparent causal valence) we have experienced a proliferation of liability shield (aka limited immunity) laws.

Of course, there are always exceptions. First, nursing homes and assisted living facilities are seeing large numbers of suits, particularly for failures in infection control. Many of these cases were filed in New York after the state legislature reversed its exceptionally business friendly liability shield.

Second, actions by employees against employers also are on the rise. These include so-called “take-home” lawsuits where the plaintiff is not the employee (typically barred by workers compensation laws), but a relative (a claim approved by a California appellate court in See’s Candies, Inc. v. Ek and allowed to stand by the state supreme court in 2022). Other increasingly viable employee lawsuits are ADA disability discrimination or Title VII claims, possibly bolstered by federal government guidance from the U.S. Department of Health and Human Services and the U.S. Equal Employment Opportunity Commission.

However, the COVID liability landscape has presented less of a narrative about the development or implementation of substantive torts doctrine and more a study in policy-politics. This post explores the types of state liability shields (cf. the federal PREP Act) adopted and how that typology shifted over time and place. It also questions whether shields reflect good public policy and suggests some of the politics that seemed to drive the legislators that voted for them.

Shield Propagation

Litigation against cohorts such as employers, health care providers, and nursing homes is already difficult, but COVID-19 lawsuits have proven even more difficult to win. Viral transmission of COVID-19 remains possible even where reasonable care is taken. Furthermore, identifying a specific source of infection for causation purposes is extremely difficult, albeit not impossible. Some businesses were also quick to deploy exculpatory clauses in their contracts or signage refuting any liability for injury or damages; clauses which, while of dubious legality, will have some chilling effect.

The first months of the pandemic were characterized by a plethora of gubernatorial executive orders (EO), frequently addressing the relaxation of licensure and scope of practice rules as states, particularly in the northeast, struggled to meet the first waves of hospital admissions because of inadequate staffing and supplies of PPE.

The American Medical Association, a proponent of shields, noted, “Among those most in need of protection are the physicians who are on the front lines providing care to COVID-19 patients, those who have shifted their practices to telemedicine, and those whose treatment decisions may have been based on government directives.” Given the chaotic times, some over-reaching in the direction of physician and hospital immunity was perhaps understandable.

The 2020 spring/summer “re-opening” was characterized by reduced immunity activity in the health care space and an increase in liability shields favoring restaurants, gyms, and other businesses. These re-opening shields, a few of which also applied to health care providers, tended to be statutory in nature rather than EO-based, with most of the latter poised to expire concurrently with the state public health emergency. Also, unlike the health care shields, the second wave of shield legislation tended to be limited to southern and some mountain states, with reduced adoption in the northeast and the west. By early 2021, the legislative wave had slowed, despite a handful of late entries from, for example, Texas.

Shield Pathology

Shield provisions draw from the broader tort reform playbook and have stayed true to a central tenet of tort reform— legislate when there’s a real or apparent crisis! Certainly, this seems true of for-profit nursing home operators who have long railed against lawsuits, even persuading the Trump administration to reverse the prior administration’s prohibition on long-term care facilities entering into pre-dispute, binding arbitration agreements with their residents. Nursing home operators were behind major lobbying campaigns to pass state and federal shields, including the original (and infamous) New York shield law.

There is considerable variety across the states as to the scope of their shield laws. For example, some apply to only some types of businesses, or, if they apply to health care facilities, might not immunize nursing homes. Most are specifically limited to COVID-19, rather than a broader palate of respiratory diseases, or infectious diseases of a different transmission profile, such as monkeypox.

There is more commonality with regard to the type of conduct immunized. Most shield from liability claims brought on the default reasonable care standards of ordinary or professional negligence. However, they then permit recovery in the case of reckless or willful or wanton conduct, standards more usually associated with punitive damage predicates or exceptions to other immunity laws, such as Good Samaritan statutes. Many shields also address the burden of persuasion on causation, such as requiring a plaintiff to prove the linkage between the defendant’s acts or omissions and COVID infection by clear and convincing evidence. Some shields provide specific requirements to trigger the immunity, such as good-faith effort to substantially comply with public health standards.

Policy Landscape

We allow our policymakers some latitude in the face of crises. As a result, perhaps we should not judge governors who immunized out-of-state physicians to help states in dire need at the beginning of the pandemic. Equally, as health care providers confronted difficult rationing decisions, or whether COVID cases should take precedence over, say, previously scheduled cancer surgeries, there may have been merit in shielding good faith medical decision-making from litigation.

Such edge cases aside usual liability standards should apply. There is nothing shocking or oppressive about the reasonable care standard. It is the appropriate default, unless a substantial risk posed is one that cannot be avoided by reasonable care, in which case strict liability should be used to nudge defendants in a different, risk-eliminating direction. If policymakers must intervene, then they should aim for a level playing field by maintaining the reasonable care standard but allow a defense of compliance with generally accepted infection control standards.

Put simply, blanket immunities are difficult to defend. They protect irresponsible businesses at the expense not only of their consumers, but also their responsible competitors. Equally, equity considerations suggest that, if any businesses should be shielded, they should not be large, well-resourced corporations, but small, locally owned ones serving the community.

Political Landscape

So, what drove the rush to pass shield laws? It is tempting to diminish the legislative activity as merely an extension of the politically motivated tort reform agenda that began with malpractice reforms introduced in the 1970s. Once again, here was a crisis to be exploited. The clearest evidence of that agenda being in play came not from the state houses but from Congress. The GOP has long favored federal liability shields promoted by the U.S. Chamber of Commerce, and in July 2020 then-Senate Majority Leader Mitch McConnell (R-KY) announced that any post-CARES pandemic economic relief or stimulus legislation would have to include a 5-year lawsuit shield for businesses, such as the proposed Safe To Work Act.

However, there may have been other political forces at work as liability shields were speedily passed by state legislatures. Given the difficulty of prevailing in a liability suit, shield laws were somewhat symbolic gestures by state legislators who were desperate to point to action at a time when government at all levels seemed paralyzed in the face of COVID. However, as statements that legislators valued business interests over broader concerns for the safety of the public, the shield laws also served as precursors to the dangerous legislation antagonistic to public health that would follow in many red states. Certainly, those legislators could not be accused of letting a good crisis go to waste!

Nicolas P. Terry

Nicolas Terry is the Hall Render Professor of Law at Indiana University McKinney School of Law where he serves as the Executive Director of the Hall Center for Law and Health and teaches various healthcare and health policy courses. His recent scholarship has dealt with health privacy, mobile health, the Internet of Things, Big Data, AI, and the opioid overdose epidemic. He serves on IU’s Grand Challenges Scientific Leadership Team, working on the addictions crisis and is the PI on addictions law and policy Grand Challenge grants. His podcast is at TWIHL.com, and he is @nicolasterry on Twitter.

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