Herndon, USA - April 27, 2020: Virginia Fairfax County building exterior sign entrance to Mom's Organic Market store with request to wear face mask due to covid-19 pandemic.

Tort Liability is a Potentially Powerful Tool for Pandemic Response

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.

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Construction workers wear protective face masks to prevent the spread of Covid-19.

California Supreme Court to Decide If Employers May Be Liable for ‘Take-Home’ COVID-19

By Mark A. Rothstein

Should an employer be held liable if an employee is infected with the SARS-CoV-2 virus in the workplace and subsequently “takes it home” and infects a family member? The California Supreme Court will soon take up this question in Kuciemba v. Victory Woodworks.

The take-home liability theory was developed in the 1990s to provide a remedy for family members exposed to asbestos fibers brought home on the clothing of an employee, which later resulted in severe illness or death. Asbestos presented a unique and compelling case for recovery for a number of reasons: it is responsible for hundreds of thousands of deaths, asbestosis and mesothelioma are diseases solely caused by asbestos exposure, an OSHA standard requires employers to provide protective clothing and changing rooms to prevent take-home exposures, and strict products liability theory may be used because asbestos is a “product.”

Notwithstanding these compelling factors for plaintiffs, the states are about evenly divided on whether they recognize lawsuits based on the take-home theory. Courts in states prohibiting such actions consider the harms unforeseeable, or determine that there is no significant relationship between the exposed family member and the employer, or rely on legislation barring take-home cases.

The California Supreme Court has adopted take home asbestos liability and the California Court of Appeals has applied this to COVID-19, but the California Supreme Court has yet to rule on this specific issue.

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Train tracks interchange leading around a curve as a controlled fire burns on the track during repairs.

COVID-19 and the Problem of Multiple Sufficient Causes

By Nina A. Kohn

Although politicians and pundits warned that businesses would drown in a “tidal wave” of lawsuits seeking to hold them liable for COVID-19 infections, plaintiffs face significant barriers to recovery. Not the least of these is the requirement that a tort plaintiff establish that the defendant was the “actual cause” (or “cause in fact”) of the plaintiff’s injury. This seemingly simple requirement creates a profound barrier to holding even the most negligent, reckless, and bad intentioned actors liable for spreading COVID-19. As others have observed, in a world in which SARS-CoV-2 is increasingly ubiquitous, plaintiffs will often be unable to show that their infections resulted from any particular bad actor’s behavior.

It is in this environment that a seldom used theory of causation — the “multiple sufficient causes” approach — may find new relevance. But it is also in this environment that the American Law Institute (ALI) — an organization comprised of leading lawyers, judges, and academics that publishes influential “Restatements,” or summaries, of common law — is being urged to jettison that theory in the Restatement Third of Torts.

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Gavel lying in a courtroom.

The Impossibility of Legal Accountability for COVID-19 Torts

By Chloe Reichel and Valerie Gutmann Koch

Since the first days of the COVID-19 pandemic, employers, businesses, and other entities have anticipated litigation around tort claims associated with the novel coronavirus. Early in 2020, scholars here began to grapple with questions of tort liability relating to the pandemic response. However, nearly three years later, it appears that the warnings of a “tidal wave” of lawsuits were vastly overstated.

In this symposium, we asked torts scholars to reflect on questions surrounding whether and how individuals and entities might be held liable for the harms associated with SARS-CoV-2 infection, particularly as infection has grown increasingly widespread and COVID mitigations have become more limited or entirely eliminated.

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LISBON, PORTUGAL - 7 NOVEMBER 2017: Dr. Oz, heart surgeon & television personality speaks at the Web Summit, Lisbon.

The Dr. Oz Paradox

By Claudia E. Haupt

Why does the law sanction giving bad advice to one patient, while it permits giving bad advice to millions of YouTube or television viewers, which may result in significant physical harm?

We might call this the “Dr. Oz paradox.” Dr. Mehmet Oz, the Republican candidate in Pennsylvania’s U.S. Senate race, is a famous television personality as well as a licensed physician. But, according to one study, half of his publicly disseminated medical advice is wrong. Yet, his sizable audience may very well follow it anyway, and perhaps suffer harm as a result. Such bad advice, which could get any doctor in legal trouble if disseminated to their patients, may be given to the public at large without fear of sanction. The consequences of this sharp doctrinal distinction can be quite jarring.

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Vial and syringe.

Can Children Consent to the COVID Vaccine? The Case of Foster Care and Juvenile Justice

By Victoria Kalumbi

Despite pediatric COVID-19 vaccine availability, many youth remain unvaccinated, and are thus at higher risk of life-altering outcomes as a result of contracting COVID-19.[1]

Some children may be unvaccinated by no choice of their own, but instead because of decisions made by parents, guardians, or state or local government officials.

In this post, I argue that young people should have the opportunity to consent to vaccines. I focus on the specific case of children in foster care and the juvenile justice system, as they are particularly vulnerable amid the ongoing pandemic. However, the legal and political avenues explored in this piece to ensure that young people have a stake in their health and vaccine status are broadly generalizable to all children.

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Washington, DC USA May 3 2022: Protesters gather at the US Supreme Court after a report that the count will overturn Roe vs Wade, ending the constitutional right to abortion.

An Ob/Gyn Reflects on Dobbs: ‘The Time Has Passed for Neutrality’

By Samantha DeAndrade

Last week, in response to a petition written by myself and colleagues, the American Board of Obstetricians and Gynecologists (ABOG), which is headquartered in Texas, reversed its decision to pursue in-person board certification exams.

In light of the Supreme Court’s ruling in Dobbs vs. Jackson Women’s Health, my colleagues and I held grave concerns about traveling to Dallas, Texas for this credentialing exam. We worried for our patients, our colleagues, and — though hard to admit it — ourselves.

In our petition, we cited concerns about the well-being of our pregnant colleagues who might encounter a pregnancy complication while in Texas and not have the full range of life-saving, evidence-based options available. We also expressed fear for our personal safety as abortion providers in a state where anti-abortion vigilantes are allowed to sue anyone who performs or assists in a pregnancy termination. It also felt wrong to contribute to the economy of a state that has passed the most restrictive abortion laws in recent history; a decision we know is about power and politics, not patient safety.

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doctor holding clipboard.

Change for the Medical Malpractice Compensation System in England?

By John Tingle

It is fair to say that the British public are generally speaking very proud of our National Health Service  in England, and treasure it greatly. The NHS Constitution sets out the seven key principles which guide the NHS in all its activities, and these include:

  1. The NHS provides a comprehensive service, available to all.
  2. Access to NHS services is based on clinical need, not an individual’s ability to pay. NHS services are free of charge, except in limited circumstances sanctioned by Parliament.

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Physical therapist helps person in wheelchair.

Balancing Patient Rights and Costs in Medical Malpractice Claims

By John Tingle and Amanda Cattini

The issue of the high and increasing costs of clinical negligence (medical malpractice) in the National Health Service (NHS) in England has long been a contentious one. There are common themes in the debate. The economic arguments supporting reform explain that the NHS is spending a considerable amount of money out of its health budget on malpractice claims, which otherwise could be put into front line health care services.  While the economic arguments are important, others contend that the patient’s voice must be heard more widely in the reform debate. They emphasize that it is important to look deeper as to what compensation means to victims of clinical negligence, and caution against unnecessarily fettering patients’ reasonable pursuit of claims.

Two recently published reports provide several key perspectives on these issues.

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