Pennsylvania House passed revived law to provide additional protection from litigation to companies legal claims due to injuries and deaths related to COVID-19.
"These liability safeguards are focused, narrow, and temporary, which is what Pennsylvania businesses urgently need to address the economic challenges posed by the COVID-19 pandemic," said Gene Barr, President and CEO of the Pennsylvania Chamber of Business and Industry.
Proponents of House Bill 605 claim it would prevent frivolous lawsuits from clogging an already lagging judicial system, while providing plaintiffs and defendants with a speedy remedy that saves legal costs.
However, trial lawyers countered the bill as a barely veiled attempt to protect “negligent” businesses, including long-term care institutions, from being held accountable. They point out that less than five months ago lawmakers passed a similar bill to Governor Tom Wolf and he has vetoed it.
"They want special treatment, and it is deeply worrying that every member of the House of Representatives supports laws that remove the legal rights of their constituents to protect their loved ones," said Paul Lagnese, president of the Pennsylvania Association for Justice. an organization representing litigators.
The bill by Rep. Torren Ecker, a Republican who represents part of York and Cumberland counties, would amend the state's judicial law to provide for civil arbitration of civil claims for assault or death related to COVID.
The bill, which is part of a larger proposed stimulus package, was passed by the House Budgets Committee on Tuesday, one day after it was reintroduced.
"The purpose of this legislation is to prevent frivolous lawsuits that cannot be proven in court with legitimate evidence, but still place a significant financial burden on the defendant," Ecker said in a co-sponsorship memo.
The representative noted that the district courts have established programs for lawsuits seeking damages of less than $ 50,000. These arbitrations are designed to provide a less formal and more efficient way to resolve smaller cases faster and with lower defense costs.
According to Ecker's bill, cases alleging personal injury as a result of exposure to COVID-19 would be subject to similar mandatory arbitration, but expedited for cases where defendants met the "then" public health guidelines during the COVID crisis have complied.
An arbitration board made up of three local lawyers in the city where the case was filed would hear the claims first. Regardless of the arbitration board's decision, either side could still file a lawsuit in the Commonwealth Court.
More: Despite COVID, some Pennsylvania nursing homes are struggling with infection control
The protection of civil liability would not apply to cases in which the actions involve gross negligence, willful misconduct or willful infliction of damage, emphasized Eckert.
"This is a sensible approach to a problem that could bind our legal system, hinder business growth and suppress our economy even more," said Ecker.
According to McKnight's Business Daily, at least a dozen states have introduced immunity for businesses to limit their exposure to COVID-19-related lawsuits, most recently in Kentucky.
Wolf vetoed a similar civil liability law in December. At the time, the governor said he suggested the safeguards were "too broad" and "invite the potential for negligence and disregard for public safety".
Pennsylvania medical providers already have safeguards under an executive order issued by the Wolf Administration last year. It granted liability immunity to licensed health care providers providing medical services related to COVID-19.
Philadelphia attorney Robert Sachs Jr. suggested that the bill could be unconstitutional based on a decade-long ruling by the Supreme Court.
The state's highest court passed a law in 1976 – the Health Services Misconduct Act, which imposed "nearly identical arbitration tribunals," said Sachs, whose law firm handles personal injury cases with a heavy emphasis on malpractice and negligence in nursing homes.
"The court examined details of the inherent costs and delays in arbitration and invalidated the legislature's attempt to circumvent the state's constitutional right to trial," he added.
But constitutional conflicts aren't the only problems Sachs sees with the bill.
The legislation says nothing about who will pay for the lawyers who will try the cases in these arbitration tribunals. His language suggests that when a case is challenged in the Court of Common Pleas, an assessment of "fees and costs" is made against the "appellant," Sachs said.
"This is the introduction of a 'loser pays' system that our civil justice system has never adopted," he added.
Arbitration would also save costs for its customers, he said.
"This legislation would wrongly increase the cost of a day in court," Sachs said. "Malpractice cases require expert assistance before they can be filed. No case could hope to prevail without the testimony of several experts. "
Sachs and other lawyers say the bill is clearly aimed at protecting long-term care surgeries that have been at the epicenter of the COVID-19 pandemic.
More: Industry: The slow adoption of vaccines does not protect PA residents and long-term care workers
Around 50% of the more than 25,000 deaths from COVID cases in Pennsylvania were among residents of long-term care facilities, according to state data. Workers at these facilities also make up more than half of the 26,000+ healthcare workers in Pennsylvania who tested positive for COVID.
A senior long-term care industry leader in Pennsylvania said the House's bill supported long-term carers following state and federal COVID guidelines despite a lack of personal protective equipment, testing needs, and staff support.
"The long-term care community has followed instructions and is now waiting vulnerable with no protection as an onslaught of lawsuits begins," said Zach Shamberg, president and CEO of the Pennsylvania Health Care Association, which represents more than 400 members -term care providers.
To date, at least two Pennsylvania charitable nursing homes have been sued for exposure to COVID-19. Two lawsuits have been filed against the Beaver County nursing home where the worst COVID-19 outbreak occurred. More than 500 employees and residents tested positive and more than 70 residents died.
Fifteen former residents or family members of the Brighton Rehabilitation and Wellness Center in Beaver County have sued the owners of the home in federal court for alleging death, business negligence and vicarious negligence.
The estate of a Brighton housekeeper who died of COVID-19 last May has filed a separate unlawful death lawsuit against the home's owners in federal court.
Lawyers representing the owners of Brighton tried unsuccessfully to dismiss the late housekeeper's lawsuit, citing federal immunity protection. The attorneys resubmitted the second lawsuit in January for the same reasons.
In another lawsuit, Philadelphia attorney Martin Kardon is representing the families of 11 of the 39 residents of Gardens of Steven, Lancaster County, who have died since November after testing positive for COVID.
He called the arbitration provisions of the bill "pain, but not a game changer" because the outcome of the arbitration would be irrelevant.
The proposed targeted immunity is a different story, Kardon said.
The vendors covered will not be civilly liable for any damage or personal injury related to COVID-19 exposure, including cases resulting from a lack of equipment, supplies or personnel.
"Any health care provider who cares for a patient who gets COVID is immune and lacking anywhere near willful misconduct," Kardon added. This (proposed) law would disproportionately affect the frail elderly, which would benefit profitable corporations and hedge funds. "
More: Fast response, hands-on COVID teams will continue to support long-term care facilities for the time being