By Tessa Weinberg
Under the bill proposed by Sen. Ed Emery, R-Lamar, healthcare providers and businesses would be protected not just from litigation stemming from the pandemic — but also under declared states of emergency in the future.
The idea, which has been a top priority of Gov. Mike Parson and has the public support of hundreds of businesses, has been floated since the spring. While previous attempts to pass COVID-19 liability protections failed, Parson expanded the special session’s call last week to include liability protections at the request of legislators.
“None of these groups should be penalized for their efforts to respond to a declared state of emergency,” Parson said Thursday. “They must be able to continue operating and serving the public without risk of unnecessary and senseless claims.”
But critics argue it will provide protection to businesses who flout the rules — and will leave customers and employees with little means of recourse to hold them accountable.
Brett Emison, the immediate past president of the Missouri Association of Trial Attorneys, said the bill would infringe on Missourians’ 7th Amendment rights to a trial by jury.
“Immunity only has one purpose,” Emison said, “and that is to protect wrongdoers from accountability for their actions.”
The GOP is determined to push the bill forward. But when is still up in the air, after an outbreak of COVID-19 among Senate Republicans and staff resulted in the postponement of the special session until after the Thanksgiving holiday at the earliest.
Scope of the problem
It’s unclear how many businesses in Missouri have already faced the type of lawsuits Emery’s bill aims to prevent.
The Missouri Chamber of Commerce and Industry, a major backer of the legislation, has said that since March more than 1,000 COVID-19 lawsuits have been filed nationwide.
According to the law firm Hunton Andrews Kurth’s “COVID-19 Complaint Tracker,” Missouri has seen about 90 COVID-19 related complaints. Nearly half have been insurance-related claims, like coverage for small businesses, or civil rights cases, like a house of worship challenging regulations, Emison said.
“This is a solution in search of a problem,” he said.
Brad Jones, the Missouri state director for the National Federation of Independent Business, or NFIB, said that while there haven’t been many cases filed in Missouri yet, he believes there will be — and that small businesses may be a target.
“I think for 2021, you’re looking at the possibility of some of those companies getting sued,” Jones said.
It’s a concern for businesses, too. A recent NFIB survey of its Missouri members found 69 percent of small business owners are moderately or very concerned about increased liability and 65 percent are similarly concerned about getting customers back.
Other states have passed similar legislation, and while some are wide-ranging, others have limited their scope.
In Nevada, liability protections don’t extend to schools, hospitals and other health services. In North Carolina, protections are limited to “essential” businesses.
Emery’s bill would provide protection to a large swath of businesses, from healthcare providers to property owners to a person who “designs, manufactures, labels, sells, distributes, or donates” a product in response to an emergency.
And it leaves those seeking to file lawsuits with a high standard to meet. For example, to be successful in a claim over a product, a plaintiff would have to prove that there was an intent to harm, “a deliberate and flagrant” disregard for safety or knowledge that the product was defective and that it could cause injury.
Emery said higher standards are necessary to prevent frivolous and costly lawsuits from being filed in the first place.
“It’s not really lawsuits that are lost that are frightening to business. It’s class action lawsuits that are settled,” Emery said. “So many times for a business, they can’t afford to fight a lawsuit, particularly a class action suit, and so they just go bankrupt or close their doors or suffer the losses.”
Unintended consequences
Senate Minority Leader John Rizzo, D-Independence, cautioned against creating a policy that provides “blanket immunity forever for bad actors.”
When the legislature allowed for expanded early voting options amid the pandemic, Rizzo noted, lawmakers were clear to limit the provisions to only the August and November elections and to specifically name the virus itself.
Emery’s proposed bill would extend to future emergencies, not just the pandemic, and would use the definition of an “emergency” that allows it to be declared by either the governor or the legislature.
Emison warned of unintended consequences that he said would arise from such broad protections. What’s more, the widespread nature of the virus already makes it difficult to determine exactly where someone may have contracted it. And even then, under existing law a breach of responsibility would have to be proven — which Emison said shouldn’t be a concern for businesses who are following safety guidelines.
Emery said it can go both ways.
“It may be virtually impossible to prove that I got COVID at Walmart, but it’s also virtually impossible to prove that I didn’t,” Emery said. “And those are expensive fights to have.”
Among the businesses that have signed on in support of the Chamber’s letter to Parson are some of the state’s largest hospital systems on the frontlines, like BJC HealthCare, Mercy, SSM Health and St. Luke’s Health System.
The bill explicitly notes that healthcare providers would not be liable for civil damages or administrative sanctions for failure in the delivery or “nondelivery of health care necessitated by the emergency.”
Dan Mehan, president of the Missouri Chamber of Commerce and Industry, said that “nondelivery” of care could translate to the cancellation of elective surgeries or other delays due to the pandemic. Hospitals across the state have recently canceled elective procedures as they warn they are in danger of being overwhelmed.
Emison noted a section of Missouri’s statutes already provides basic protections to healthcare providers in an emergency, but Mehan said the pandemic has brought forward many lessons, including that “it’s always prudent to evaluate existing law and see where you can make it clear and easy to interpret, if changes are necessary.”
Rep. Mark Ellebracht, a Democrat from Liberty and attorney, said the sweeping nature of the bill may only serve to provide fuel for lawsuits challenging the language. While it could potentially prevent verdicts, he said it won’t save money when it comes to fighting litigation.
“They’re not protecting themselves from having lawsuits,” Ellebracht said. “They’re opening themselves up to new lawsuits to litigate what this language means.”
Emery said he’s hopeful the comprehensive nature of the bill stays intact. Too much definition, like what constitutes “substantial compliance” or “reasonably consistent” with health orders, “gives either favor to one side or too much protection to the other,” he said.
But he anticipates significant changes as the bill’s provisions are debated — much of which won’t happen until after Thanksgiving depending on lawmakers’ availability.
While it remains to be seen if the legislation is passed amid the special session or taken up again come January, Parson said Thursday that COVID-19 lawsuits are “the last thing we need right now.”
The Independent’s Rudi Keller contributed to this story.
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