covid liability waiver - Bill of Health

The Impossibility of Legal Accountability for COVID-19 Torts

October 11, 2022November 7, 2022 Chloe Reichel Leave a comment

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.

Struggles Over Care Will Shape the Future of Work

March 16, 2022March 16, 2022 The Petrie-Flom Center Staff Leave a comment

By Andrew Milne

The future of work will largely be the future of care work. Health care is rapidly becoming the largest employer in the U.S., expanding to serve the fastest growing demographic, aging seniors. As a lawyer for seniors in need of free legal services, I see my clients struggle to access care made scarce by the for-profit care industry’s understaffing and underpaying of workers attempting to meet the growing need. The future of work and of aging will be shaped by struggles over care from both giving and receiving ends, perhaps against those profiting in between.

Recall that the first COVID-19 outbreak in the U.S. spread between nursing homes. These facilities, like most nursing homes, are for-profit businesses that pad their margins by cutting labor costs. The resulting understaffing has deadly effects in normal times. The pandemic intensified those effects, as underpaid care workers, forced to work at multiple facilities to survive, unintentionally spread the virus between facilities.

Kirkland, WA / USA - circa March 2020: Street view of the Life Care Center of Kirkland building, ground zero of the coronavirus outbreak in Kirkland.

The PREP Act and Nursing Homes’ Fight to Move COVID Claims to Federal Court

November 9, 2021November 9, 2021 Kaitlynn Milvert Leave a comment

By Kaitlynn Milvert

As nursing homes face wrongful death claims amid the COVID-19 pandemic, they increasingly have pursued a common litigation strategy: attempting to reroute state tort lawsuits to federal court.

A recent ruling in the Third Circuit Court of Appeals rejected this tactic. As the first court of appeals ruling on this issue, the decision avoids extending a federal statute limiting pandemic liability into unprecedented areas and defines at least some limits on the statute’s effect on state tort suits. Read More

Long-Term Care After COVID: A Roadmap for Law Reform

June 2, 2021June 2, 2021 The Petrie-Flom Center Staff Leave a comment

By Nina A. Kohn

Between May 2020 and January 2021, 94 percent of U.S. nursing homes experienced at least one COVID-19 outbreak. And nursing home residents — isolated from family and friends, dependent on staff often tasked with providing care to far more residents than feasible, and sometimes crowded into rooms with three or more people — succumbed the virus at record rates. By March 2021, nursing home residents accounted for a quarter of all U.S. COVID-19-related deaths.

The poor conditions in nursing homes that have been exposed by the pandemic are symptomatic of long-standing problems in the industry.

Fortunately, as I discuss in-depth in a new essay in the Georgetown Law Journal Online, there are a series of practical reforms that could readily improve the quality of nursing home care, in large part by changing the incentives for nursing home providers.

Are COVID Waivers Enforceable? Look to Gym Waivers for Insights

September 18, 2020September 17, 2020 yning Leave a comment

By Sunnie Ning

Salons, movie theaters, gyms, churches — if you have been somewhere recently that is indoors or requires close personal contact, chances are, you have encountered a COVID liability waiver. But how enforceable are they?

Liability waivers, which stand at the intersection of torts and contract law, are a matter of state law. They have been on the rise as a contractual solution to tort problems since the 1980s, and are now common for recreational and sporting activities with higher-than-normal risks. However, no court has adjudicated on the enforceability of a COVID liability waiver yet, and the unique nature of the pandemic makes it difficult to predict how courts will rule.

Standard gym and health club waivers, operating outside the context of a pandemic, may provide insights into the enforceability of COVID waivers.

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