The recent onset of the Covid-19 (novel coronavirus) pandemic has the legal community speculating about the potential liability of myriad entities involved, not only in the response to this pandemic, but also to vital industries and businesses not directly involved in the response. Of course, this pandemic is ongoing and nobody can say – with any certainty – whether there will be multiple waves in the coming months – restarting that which hopefully has been quelled in recent months. The short answer is that nobody knows how the liability, if any, for this pandemic’s onslaught, will be addressed by our legal system.
The federal government and New York State, among others, already has granted immunity to certain medical care providers, government entities, the pharmaceutical industry and manufacturers of materials and equipment needed for the response. Whether the federal government, this Administration, the CDC, FDA and other federal departments and agencies eventually may face liability seems doubtful. Whether the pharmaceutical industry, manufacturers of ventilators, personal protective equipment [“PPE”] and other private providers maintain immunity also remains to be seen.
Of particular interest at this time is liability for the initial response to the pandemic; especially in nursing homes and assisted living facilities with their aged and infirm populations; and with multiple comorbidities. Whether any certain such facility failed to react – or timely react – may be considered negligent, careless or reckless, depending upon the circumstances. Whether any such facility failed to follow protocols, were recklessly indifferent or grossly negligent in adhering to existing and developing CDC and other guidelines also is fact-specific. Did these entities ensure social distancing, masks, staff training and adequate supervision, especially with patients suffering dementia or other cognitive issues?
Many nursing homes and assisted living facilities might be considered liable for not quarantining patients, transferring them elsewhere or even sending healthy patients home, if possible. The ability to, and frequently test patients and staff also is at issue. The same goes for hospitals. Lack of sufficient and adequate PPE for staff also looms large with consideration of potential liability. Are staff and first responders that perish or become infected eligible only for worker’s compensation benefits?
Another issue is that most nursing homes derive their income via Medicare and/or Medicaid. How that will affect their viability and immunity, if any, remains to be seen.
Another issue is whether any certain act or omission constitutes mere negligence or medical malpractice. Some decisions only doctors are qualified to make. There already are federal civil rights suits filed pursuant to the Americans with Disabilities Act [“ADA”].
Of course, places of worship, schools, private organizations and local governments may risk suit as well.
The end result may be to establish special funds (think 9/11) for certain classes of victims, class action lawsuits and/or combinations thereof. All are distinct possibilities. Aside from wrongful death suits and injury suits, there no doubt will be legions of lost wages/earnings and lost businesses/lost business income claims. The business and casualty insurance industry, in addition to healthcare, conceivably could suffer collapse. Civil actions again the People’s Republic of China do not seem outside the realm of possibilities. 9/11 victims have been granted permission to sue the Saudi Government.
Many, if not most, hospitals and healthcare facilities are private, for-profit entities. Surely the insurance industry will be involved. Likewise for doctors and medical practices. And then there are the private businesses and industries deemed “essential.” Will these entities be granted immunity? Transportation workers, the food service industry, meat packing plants, farms and other “essential” entities surely still face exposure. Will they be compensated?