Covid-19 Care Provider Shields Remain Strong Despite Scrutiny

As the pandemic raged in early 2020, state officials tried to alleviate health-care providers’ worries over potential liability for injuries caused by events that were largely outside of their control.

The public health emergency officially ended May 11, and the health-care industry is returning to normal, but legal questions about these early-pandemic liability shields are surfacing.

About 30 states and Washington, D.C., had immunity provisions. The federal Public Readiness and Emergency Preparedness Act also shielded providers from damages arising out of the use of a “covered countermeasure,” such as a vaccine.

Now those measures are coming under court scrutiny. Some courts have questioned whether states went too far in eliminating people’s right to sue for medical negligence that may not have been Covid-related.

It’s a policy question, said Peter Kolbert, senior vice president for claim and litigation services at New York-based hospital liability insurer Healthcare Risk Advisors. The immunity provisions may have abridged some citizens’ rights, but “something had to give” to ensure the health-care industry was able to provide care during that chaotic time, he said.

Inconsistencies Abound

The provisions are inconsistent, said Stacey Lee, a professor of law and ethics at Johns Hopkins’ Carey Business School and Bloomberg School of Public Health in Baltimore.

The Johns Hopkins Bloomberg School of Public Health is supported by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

State lawmakers enacted some, and others were created through executive orders, Lee said. Still others took effect when the public health emergency was declared.

Some used specifically detailed language, but others were broader, Lee said. It’s a “real patchwork,” and state courts have applied the provisions inconsistently, she said.

But providers were never promised full immunity, Kolbert said. The provisions make exceptions for willful misconduct or gross negligence, he said.

Even with those exceptions, some attorneys now argue that courts should limit the provisions’ application.

In Arizona, for example, state lawmakers enacted a statute that immunized providers from civil liability for acting in good faith to protect people from the coronavirus.

Brian Snyder, a plaintiffs’ attorney with Snyder & Wenner PC in Phoenix, told Bloomberg Law that there’s little doubt this provision has “curbed access to justice.” Providers have used it “as a sword, instead of shield,” to avoid liability for a wide range of actions, he said. Snyder is president-elect of the Arizona Trial Lawyers Association.

Lee observed that shields have had a “chilling” effect on litigation. There have been “few lawsuits filed,” likely because the providers will be granted immunity more often than not, she said.

Kolbert confirmed that he’s been “underwhelmed” by the amount of litigation in New York. The state’s shield law, though of fairly short duration, seems to have worked, he said.

Short Memories

Under the New York law, providers had immunity beginning in March 2020 from liability arising out of a failure to stop the virus’ transmission, for injuries sustained by non-Covid patients, and for negligent care of Covid-19 patients. Lawmakers repealed the first two protections in August 2020. A shield against liability for Covid-19 patient injuries expired in April 2021.

The question now, according to Lori Semlies, co-chair of national health-care practice and founder of Covid Task Force at Wilson Elser Moskowitz Edelman & Dicker LLP, is whether the repeal applies retroactively, meaning that providers could be liable for their actions during the pandemic’s earliest days.

The New York Appellate Division, Fourth Department, said the repeal wasn’t retroactive. Semlies, a White Plains, N.Y.-based lawyer who represents nursing homes, said all eyes are now on the Second Department, which is considering the same issue. That court covers the counties where most cases against nursing homes are pending.

“People have forgotten” what it was like in early 2020, said Semlies.

Personal protective equipment was very limited, providers didn’t know how to prevent transmission of Covid-19, and even staff members—who had to be there—died, she said.

“I’m passionate about defending these cases,” Semlies said, adding the she doesn’t want to see a dollar awarded in any of them.

There was a possibility the health-care industry wouldn’t have survived the early days of the pandemic if the government hadn’t stepped in, Kolbert said.

Lee said there “needs to be a delicate balance struck between shielding providers from liability and holding them accountable for preventable harm.”

Scope of Immunity

Medical malpractice cases are hard to win even without liability shields, and proving the elements of the claim may be even more difficult in Covid-19 cases.

It’s too difficult to prove that a provider violated the standard of care when standards for treating or preventing Covid-19 kept changing, Lee said. And there’s no “bright line” for establishing gross negligence, she said.

Semlies added that plaintiffs alleging a failure to prevent the virus’ transmission will have a difficult time proving causation. A person could have picked up the virus anywhere, she said.

Providers also will have to prove that they fell within the scope of an immunity provision, Kolbert said.

This question of scope means some plaintiffs’ attorneys have taken a more strategic approach to litigation.

Snyder said that he now tries to try develop facts showing that Covid-19 had no impact on the care provided to a patient. During discovery, he’ll pose questions aimed at determining if an injury occurred because a facility was actually understaffed or forced to rely on inexperienced providers, instead of operating as normal, he said.

Constitutional Questions

Some courts, however, may still declare shields unenforceable as a matter of law.

Robert Peck, of the Center for Constitutional Litigation, is helping plaintiffs in Illinois challenge an executive order issued by Gov. J.B. Pritzker (D) that gave skilled nursing facilities immunity in the early days of the pandemic.

They argue that Pritzker lacked authority under the Illinois Constitution to issue the order, especially if it amended or repealed the Illinois Nursing Home Reform Act, even temporarily.

Pritzker’s order, and others like it, raise serious separation-of-powers issues, Peck said.

The Connecticut Supreme Court also is pondering the question in two medical malpractice cases. At oral arguments April 27, defense attorneys said an emergency powers law gave Gov. Ned Lamont (D) the broad authority to issue an immunity order.

A separation-of-powers argument is the cleanest way to challenge these shields, Peck said. But “somewhat messier” arguments can be made that health-care immunity provisions violate the due process, equal protection, and open courts provisions in state constitutions, he said.

Despite the challenges, Kolbert said he thinks the shields will “stick.”

And, though Lee doesn’t see an “explosion” of new Covid-related litigation coming, she said she’s anxious to learn what the Connecticut Supreme has to say about the constitutionality of its state’s shield and whether that will have any persuasive effect in other states.