Dear President Trump and Members of the Senate and House of Representatives:
In this time of crisis, of a global pandemic that has taken the lives of so many of our fellow citizens, we face a host of challenges. Our heroic healthcare workers are fighting valiantly to stem the tide of infection. Essential workers around the country are putting their lives at risk to keep necessary services running.
At this critical time, when we should all be pulling together, we must beware of an attack on our citizenry from another quarter: The pernicious effort by corporate lobbyists, insurance companies and other special interest groups to put our fellow citizens at risk, and press for legislative immunity to escape liability for preventable harms causing injury or death.
Even though leading bioethicists and legal scholars recognize that the risk of lawsuits against health care institutions and vendors is low, there has still been a widespread effort to immunize harmful conduct by institutions and personnel from liability for casualties caused in “good faith.”
This is bad law, and bad precedent, with risks far beyond the current pandemic. There are several reasons why sweeping legal immunity is bad public policy.
First, it is not necessary. Existing judicial and legal structures can and do already handle claims of this sort. And these institutions and vendors, as well as medical professionals are already insured against claims and losses.
Moreover, in cases of medical malpractice, there are checks and limits, which protect doctors who act reasonably and appropriately, even in this crisis. One of those protections is complying with the “standard of care.” This phrase has specific meaning – the medical “standard of care” usually means the degree of care and skill of the average health care provider who practices in the provider’s specialty, taking into account the medical knowledge that is available in the field. And standards of care are not static – they evolve as medical practice evolves. To the extent then, that medical/legal/ethical committees draw up new standards, new guidelines for appropriate medical decision-making, even when it comes to rationing or allocating ventilators, physicians who follow those guidelines would be within the standard of care, and not liable for malpractice. The definition of negligence is “unreasonable conduct under the circumstances.“ The current circumstances are a pandemic and therefore a judge or jury would make significant allowances for health care providers, as well they should.
Adopting language that provides any sort of blanket immunity, or even “good faith” immunity is overbroad. It will deprive legal recourse to victims who die not as a result of COVID-19, but as a result of medical errors and negligence. At any time, but especially during a pandemic, health care institutions must act reasonably under the circumstances to prevent harm to patients and caregivers. Our legal system imposes liability on responsible parties to keep appropriate incentives in place so hospitals and nursing homes take proper care to protect innocent victims. It would be irresponsible, and potentially deadly, to remove those incentives and immunize the institutions we are relying on to protect us and our families.
Weakening existing standards of conduct will leave victims of negligence and error without a legal remedy. It is not fair that those who have lost loved ones should be left without the means to hold medical practitioners and their institutions accountable. Studies have demonstrated that most claims for medical malpractice experience are never even pursued by the victim. Surely, depriving victims of wrongdoing, should it occur, is draconian and unnecessary.
And yet, this assault on legal protection is happening. Thus, for example, Connecticut, which has adopted this “good faith immunity,” has extended this immunity not merely to front line health care workers, but nursing homes and their employees.
The Center for Justice and Democracy explains clearly why this is a bad idea:
Some of these homes are run by negligent for-profit chains. Elderly nursing home residents are probably the single most vulnerable population in a state, virtual sitting ducks for this virus.
Yet these residents, who depend on nursing home competence for their literal survival, are now suffering terribly in this pandemic. Clearly, negligent corporate owners should be on the hook for lethal, preventable failures, as described in this Washington State case against Tennessee-based Life Care Centers of America Inc., ‘among the largest players in U.S. nursing home care, with more than 200 senior-living centers in 28 states.’ . . .
A recent USA TODAY analysis of federal inspection data found that a majority of U.S. nursing homes (75%) have been cited for failing to properly monitor and control infections in the last three years – a higher proportion than previously known.
Compared to virtually any other population in America, nursing home residents are the most fragile and at-risk for COVID-19. Whether it’s Congress or the states, the very last thing we should be doing is removing the nursing home industry’s financial incentive to maintain safety for these residents. (https://www.thepoptort.com/2020/04/immunity-madness.html)
The problem extends far beyond nursing homes. This is part of the coming wave of tort injuries, far beyond health care institutions. This includes sales of defective products, dangerous nostrums, ill-advised treatments and other fraudulent or criminal merchandising preying on people struggling with the COVID-19 pandemic.
Immunity from liability is a legal contagion. Special interest groups often raise pleas for immunity from liability for injuring, even killing people. And more often than not, those pleas are a pretext to obscure or conceal serious wrongdoing; and to escape liability for harming – maiming, even killing – people. Claims for legal immunity will spread as other interest groups seek to exempt themselves from accountability. Airlines, cruise ships, restaurants: It is easy to anticipate claims and special pleadings from these and other industries and their insurers, all seeking special treatment to deprive wrongfully injured people of their legal and Constitutional rights.
We, the undersigned, call on you to stand fast as protectors of the weak and vulnerable, and preserve the historic legal rights of the American People to pursue justice those who inflict preventable harm to the fullest extent of the law.
Founding Partner, Kline & Specter, PC;
Professor of Practice, UC Hastings College of the Law
Consumer Federation of America
Joseph W. Cotchett, Esq.
Cotchett, Pitre & McCarthy
San Francisco, CA
Greg Kafoury, Esq.
Kafoury and McDougal
Michael Shammas, Esq.
New York, NY
Donald H. Slavik, Esq.
Slavik Law Firm, LLC
Steamboat Springs, CO
Jon D. Hanson
Alan A. Stone Professor of Law
Harvard Law School
Robert C. Fellmeth,
Price Professor of Public Interest Law, University of San Diego School of Law
Ross C. “Rocky” Anderson
Anderson & Mason, PLLC
Former Mayor, Salt Lake City, Utah
Michael V. Ciresi, Esq.
Ciresi Conlin LLP
Jason Kafoury, Esq.
Kafoury and McDougal
Matt Wetherington, Esq.
Wetherington Law Firm
Paul A. Slager, Esq.
Silver Golub & Teitell, LLP
Michael L. Rustad
Thomas F. Lambert Jr. Professor of Law
Suffolk University Law School
F. Paul Bland, Jr.
Robert B. Adelman, Esq.
Adelman Hirsch and Connors LLP
Pamela Gilbert, Esq.
Cuneo Gilbert & LaDuca, LLP
Thomas V. Girardi, Esq.
Los Angeles, CA
Mark McDougal, Esq.
Kafoury and McDougal
Richard L. Newman, Esq.
American Museum of Tort Law