Legal Immunity and COVID-19 Recovery: Thorny Issues Abound

Want to start an argument?

Start talking about COVID-19 immunity for people and companies. Anywhere in the nation. In Congress. In state legislatures and governor’s chambers. In hospitals and nursing homes. Indeed, even perhaps in your home.

My goodness, people start talking past each other. Heartless companies who do not care about their customers or workers, they say. What? Greedy trial lawyers, they retort (no pun intended).

Obviously, we are not talking here about viral (or herd) immunity, but legal immunity. Baby steps of limited immunity have begun for the life science industry nationally. Varying immunities for nursing homes, hospitals and providers have been offered in varying degrees by some states, such as New York and New Jersey.

There are strong public policy arguments both ways. If a company acts recklessly or deliberately does not follow governmental guidelines—and people to whom the company owes a duty of care are hurt—traditional principles of public policy should favor the imposition of liability. Yet, public policy is violated by lawsuits involving aggregations of large numbers of plaintiffs to try to extort settlements because of the potential financial exposure of a loss, the costs of defense, or the availability (or non-availability) of insurance. Not only that, the issues related to every individual plaintiff will differ (both liability and causation) and will need to be litigated individually.

The immunity protections that have been enacted protect actions taken in the midst of a developing national disaster, as well as the need to encourage innovation and the provision of care with far less than perfect information. They make sense, and there are carve outs for gross negligence and the like. Such conduct is not immune and is appropriately subject to the court systems.

What about going forward?

Lawsuits are supposed to judge the reasonableness of conduct or a product at the moment in time the conduct occurred or the product sold. In the evolution of dealing with COVID-19, what was reasonable changed seemingly from day-to-day. Conduct that occurred on Day 1 cannot be judged by what was known on Day 7 or Day 100. It must be Day 1. Years from now in retrospect, experts may have opinions about what should have been done and those opinions will of necessity be governed by knowledge gained in the intervening years. But whether in a one-off case or in mass litigation, the conduct complained of must have been plainly wrong on the day that it occurred, not that of even one day later, to fairly support liability.

This is not just theoretical. Let’s look at what may well be real world examples.

    • Contaminated food or food packaging. Food with the virus almost certainly will be unfit for human consumption. Issues to consider:
      • Does ingestion of the virus cause disease? Did it cause this individual’s disease?
      • Was the process of making the food, or packaging it negligent?
      • Was the conduct reasonable? Who determines that? Was there an industry standard at that time? Still evolving at the time? Compliance with government regulations? Does compliance provide protection? Should it?
    • Contaminated medical device. Similar issues.
    • Safety and efficacy of drug therapy or vaccines or medical devises. What about experimental or off-label use? Reasonable expectation of misuse or off label use? Dosage? Sufficiency of studies supporting use? Adequacy of safety/efficacy assessment before use?
    • Respirators. Safety and efficacy. What about manufacturing defects? Caused by need for speed in manufacturing? Caused by need to rely on other systems for non-medical device companies making respirators? Labeling? Off label use?
    • Use of unproved, or even dangerous, ‘cures’ or ‘therapies’. Reasonably foreseeable misuse?
    • Medical treatments/therapies:
      • Timely diagnosed? Appropriate advice? “Just the flu, go home and rest?”
      • Evolving knowledge of symptoms/risk factors for the disease?
      • Appropriateness? Dosage? Off label? Quality of literature relied on?
      • Appropriateness? What was causing respiratory distress? Not enough oxygen? Enough oxygen, but inadequate oxygen absorption? Split between patients? Pressure levels? Weaning needed?
      • Lying in bed – better off prone than supine? Make a difference?
    • Workplaces/Places of public accommodation. Where is standard of care/reasonableness standard setting for businesses opening once quarantine ends?
      • Office layouts?
      • Inquiries as to COVID status?
      • Cleaning processes?
      • Visitor processes?
      • Masks? Masks forever? When not needed anymore? Who determines? Random juries?

We could go on and on.

While ultimately complex, the paramount public policy should be to open our economy as quickly as can be safely done based on information available at that time. If forced to wait until there is perfect information, that day will never come. It seems reasonable to say that if a business opens and complies with government guidelines for opening, then if one or even many people develop the virus, good public policy should insulate that business from liability. But if it does not, then it should not.

As to the conduct of the life sciences and health care industries, public policy should be that unless there was gross negligence, then businesses in those industries should be protected as well. Second guessing conduct claimed to be merely negligent in an environment where what was reasonable was changing day-today (and the changes based on incomplete and evolving information) is eminently unreasonable.

Likewise, allowing the plaintiffs’ bar to aggregate hundreds, thousands, hundreds of thousands, or perhaps millions of cases together to extort settlements in a fragile economic environment from already fragile companies and insurance carriers is also not good public policy.

This is not to say that if there were actions that were grossly negligent, or reckless, there should be no remedy. In those circumstances, an exception to immunity will be appropriate.

It is going to be hard enough for our country to dig its way out of this hole, without the need to divert time and effort to defend an overwhelming flood of litigation. At a minimum, the argument over immunity that is going to occur over the next few weeks and months needs to take into account the reality that judgments need to be based on information available on the day of the conduct to the type of business involved in the conduct.

In contrast, the conduct of companies trying their best to manage a very rapidly evolving pandemic of historic proportions being second-guessed by paid experts years down the road is neither an efficient nor a fair way to resolve these issues. Moreover, settlement by extortion based on volume of cases is never good public policy.

The public discussion about immunity must recognize the incredible human toll of deaths and significant injuries that COVID-19 is leaving in its wake. Grossly negligent and reckless conduct could and should be subject to recourse in the courts. Companies and people doing their best in a rapidly evolving pandemic should be protected.

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