Liability and Liability Shields

Abstract

This Chapter first examines the liability of businesses and medical professionals for acts and omissions involving COVID-19 mitigation, treatment, and reopening. Second, it provides an analysis of the federal and state liability shields, those that were in existence before COVID-19, those introduced more recently, and calls for more and broader shields. Claims will be brought by consumers (predominantly nursing home residents) alleging that businesses failed to protect them, patients treated at the height of the pandemic when emergency departments were overrun, and consumers who contract the virus during reopening. There are few federal liability shields applying to private actors, the most important being the PREP Act of 2005. A substantial number of states have adopted some type of liability waiver specifically related to the COVID-19 pandemic, initially providing immunity protections for health care providers and more recently protecting businesses as they reopen. Many of the health care providers shields present difficult questions of interpretation, particularly with regard to whether they are limited to emergency triage decisions, mitigation, or treatment efforts in contrast to broader acts or omissions that may have contributed to the infection outbreak, such as poor hygiene control. There is no evidence that a broad federal shield is necessary. State policymakers also should resist calls for broader shields and should provide transparent, data-driven guidance on reopening which can inform the existing and appropriate reasonable care standard. Courts should carefully scrutinize the constitutionality of shields and not show the same deference as given to prior tort reform legislation.

This paper was prepared as part of Assessing Legal Responses to COVID-19, a comprehensive report published by Public Health Law Watch in partnership with the de Beaumont Foundation and the American Public Health Association.

Keywords: COVID-19, coronavirus, legal responses, pandemic, public health, law, public health law, liability, liability shield