The criticisms of the temporary and targeted COVID-19 liability protections contained in Pennsylvania’s H.B. 1737, vetoed by Gov. Tom Wolf on Nov. 30, are long on rhetoric and short on facts.
Wolf erroneously claimed the bill was “overreaching,” and that it protected noncompliance with public health orders. He also claimed the bill shielded entities from liability in a broad fashion inviting “potential for carelessness and a disregard for public safety.” Various opponents of the bill have referred to the provisions of H.B. 1737 as a “grab bag” to appease special interest groups as a result of “contrived fears.” Let us break down these arguments and look at what the bill actually does.
The safe harbor protections found in H.B. 1737 are not a grab bag at all. In fact, they are targeted, tailored and temporary, and address only the unique liability challenges caused by the pandemic.
The language of H.B. 1737 would protect number of entities who are struggling with a panoply of issues related to the pandemic, including increased liability exposure. Those entities include:
- Business and government services — those entities permitted to operate under the governor’s emergency declaration and holding themselves out as open to members of the public;
- Childcare facilities;
- Health care providers — including hospitals, long-term care facilities, doctors’ offices and emergency medical services;
- Higher education institutions — including community colleges, state-owned and related-schools, and private colleges;
- Schools — including public schools, charter schools and private schools;
- Local governments; and
- Personal protective equipment manufacturers, distributors, labelers and donors.
These entities have been hard hit by the pandemic. They deserve protection for their efforts to continue providing the valuable services we depend on despite the unprecedented conditions they face during this difficult time.
Under H.B. 1737, businesses and government services, childcare facilities, higher education, schools and local governments would be protected from liability from actual or alleged exposure to COVID-19 unless they were shown to be grossly negligent or acting intentionally. If these entities are following public health directives, they could not be found to be grossly negligent and, therefore, liable.
Public policy should protect those who are complying with government orders and directives during the pandemic. Some of these entities are struggling to stay in business as it is. The burdens of misguided litigation should not be heaped upon them.
PPE donors, or those selling at cost, would not be held liable absent recklessness, willful misconduct or intentional infliction of harm. PPE manufacturers, distributors and labelers would be protected unless they act in a grossly negligent manner, willfully or intentionally inflicted harm. And they must be in accord with manufacturing standards in effect prior to the emergency declaration.
Health care providers would receive several needed protections under H.B. 1737. They would not be held liable, absent a finding of gross negligence, recklessness willful misconduct or intentional harm, for:
- Treatment or testing of COVID-19 patients;
- An act or omission caused by a shortage of equipment, supplies or personnel;
- Harm directly resulting from the demand for testing and treatment of COVID-19 that was beyond the reasonable control of the provider; and
- Compliance with public health directives regarding the testing and treatment of COVID-19.
Providers would also be protected from liability if they complied with public health directives.
The safe harbor protections found in H.B. 1737 only apply during the governor’s proclamation of disaster emergency. These are not permanent reforms that threaten the livelihood of plaintiffs attorneys throughout Pennsylvania.
Opponents Criticisms Do Not Withstand Scrutiny
Anyone who takes the time to read the clear language of H.B. 1737 will conclude that it encourages safety and good behavior, by only giving full protection to those entities who are following public health orders and engaging in good safety practices.
The notion that this legislation contained “every tort reform measure proposed in the last 10 to 15 years,” as attorney Cliff Rieders was quoted as saying in a Law360 news analysis last month, is farcical. Even if H.B. 1737 were the grab bag complained of by Rieders, it would only be a temporary one, in recognition of the increased liability faced by those soldiering through the pandemic.
Another attorney quoted in the same piece claimed that “relatively few” coronavirus-injury cases have been filed thus far, and therefore; no problem exists. What he fails to mention is that these cases can be filed for up to two years — and possibly longer — from the date of injury. The coordinated attacks on the sensible liability protections contained in H.B. 1737 seem to belie the claims that no problem exists.
Rieders also claims that GOP lawmakers were only trying to appease interest groups by providing a “Christmas gift” to donors. But the political donations of most of the 70-plus statewide organizations supporting H.B. 1737 pale in comparison to the largesse bestowed on state legislators by the various political action committees representing plaintiffs attorneys in Pennsylvania.
While contribution totals have not been compiled yet for the 2019-2020 election cycle, looking at the 2017-2018 cycle is instructive. Trial bar-related PACs, along with plaintiffs law firms, gave a whopping $9,957,576 to legislative candidates during the 2017-2018 cycle, according to figures compiled by the Pennsylvania Coalition for Civil Justice Reform. No group supporting H.B. 1737 comes anywhere close to matching these contributions.
Other States Have Stepped Up
Wolf’s veto of H.B. 1737 is particularly disturbing because 21 states — Alaska, Georgia, Idaho, Iowa, Kansas, Kentucky, Louisiana, Massachusetts, Michigan, Mississippi, New Jersey, New York, Nevada, North Carolina, Ohio, Oklahoma, Tennessee, Utah, Virginia, Wisconsin and Wyoming — as well as the District of Columbia have enacted COVID-19 liability protections with the same protections, or some combination of the protections, found in H.B. 1737.
Other states have executive orders much more comprehensive and robust than Wolf’s order earlier this year, giving liability protection only to health care workers working in hospitals. Pennsylvania is an outlier in failing to protect those soldiering through the pandemic and hoping to survive economically until vaccines help us turn the corner.
The sad part is that just as businesses think they might have survived the pandemic, the lawsuits waiting to be filed will again threaten their very viability and survival. We look forward to revisiting COVID-19 liability protections in the upcoming year.