On May 11, attorneys general from 21 states wrote to the chairman and senior member of the Senate Judiciary Committee asking for federal liability protection to mitigate the risk of frivolous litigation related to COVID-19. I am a defender of state liability under common law, but I fully agree with the attorneys general that immunity is required. However, you can deploy it yourself. Here's why.
The United States Common Law tort is ideal for treating types of injuries that are repeated man-to-man. The genius of our system is its step-by-step, precedent-based approach to human behavior over time. Unfortunately, the pandemic does not allow the recognized wisdom of common law to prevail. This is because the public health crisis is high frequency, severe and foggy.
COVID-19 is high-frequency – that is, the triggering event (positive virus infection) is sudden and occurs frequently for a relatively short period of time. The virus is of high severity for severely infected people. This means that the usual nursing practices have little or no chance of developing as a stable commercial and professional response to the virus. As our British cousins say, COVID-19 is “one time” – and the more unique an event is, the less valuable is the step-by-step approach to tort law.
This is especially the case if the legal questions are also foggy, since they are definitely here. Liability for tortious acts essentially requires two criteria – misconduct (negligence) and cause of damage – and both are opaque with respect to COVID-19.
What is negligent? How many pre-tests of a patient / customer should a specialist or dealer perform before an interaction takes place? Should high-risk customers (e.g. seniors or people who are prone to diabetes) be discriminated against and treated differently? What is the appropriate standard of care for hairdressers, restaurants, hardware stores and dentists? The scientific recommendations here vary weekly, if not daily. No standard can develop in useful time.
When is there a cause? What interaction among hundreds has caused a victim to become infected with the virus? Some have suggested that the incubation period could be up to three weeks, although it is often shorter. There are reports of patients who tested positive, then negative, and then tested positive again. There will be no convincing evidence of the exact cause of most people's infection.
Some subgroups of potential defendants, usually medical personnel, have been granted immunity from torture by state laws and (of dubious constitutionality) executive directives by governors.
And two federal laws have come into play. The President has forced certain companies – fans, masks, etc. – to produce certain companies under the Defense Production Act. This act excludes liability "for damages or penalties for acts or omissions that result directly or indirectly from compliance with a rule, regulation or order" so that General Motors may be protected if the construction of a ventilator it is manufactured by was attacked. And if you are caring for a COVID-19 patient with countermeasures currently in place, you are likely to have immunity from state and federal courts under the Public Readiness and Emergency Preparedness (PREP) law.
The Secretary of Health and Human Services (HHS) PREP statements provide immunity from liability, except for willful misconduct, for damage claims caused by the use of these countermeasures (approved medicines, procedures, and masks). PREP should protect medical personnel and manufacturers if victims claim that their work or product is defective. But PREP does not protect all likely suspects, not even all doctors. For example, what happens if a patient gets COVID-19 while the doctor is treating her for another condition?
What happens if someone who tests positive for COVID-19 claims to have had a haircut two weeks earlier, ate in a restaurant or bought something at a hardware store? No matter how many precautions were taken in these facilities, more could have been done.
None of this would be insurmountable for American tort law – people sue each other for negligence every day. However, a high-frequency, extremely serious, foggy crisis does not allow an objectively accurate decision. Our tort system is characterized by legal proceedings and the "American rule" that a victorious accused cannot force the plaintiff to pay the accused's legal fees. Therefore, “harassment suits” for foggy COVID-19 injuries – suits that are unlikely to be prevalent but are inherently unsafe – are often cheaper for the accused than for competitions. The plaintiffs' lawyers know this and the payouts are waiting for their lawsuit.
One might argue that traders have, or should have, liability insurance that would pay legal fees if sued. But insurance costs money, and a huge increase in litigation will result in premium increases that get undercapitalized dealers out of business. In addition, many liability policies include an exception for viruses that cause disease but do not cause physical damage.
Even for defenders of common law tort like me, immunity to liability for negligence – but not for willful misconduct or grossly ruthless conduct – is appropriate in the case of COVID-19. This immunity can take various forms:
- HHS could significantly expand PREP beyond healthcare providers and manufacturers, and could include any retailer who is in any way related to the virus. In my opinion, however, this would lead to constitutional problems, since historically the law of tort has to be organized by the states.
- Approval forms that waive liability can be requested and signed by all dealers. But these are often not respected by courts that they consider irresponsible and “imposed” by merchants that would clearly slow down trade. Imagine signing a form before entering any grocery store, bus, or stall at a farmers market.
- Regulators could set standards of due diligence for each industry and service sector and provide that compliance with this standard creates a safe haven against tort liability. A problem with this approach is that science is so foggy and developing so quickly that government regulations can be replaced both suboptimally and quickly.
- Employee compensation laws could legally be seen as protection for any employee who is infected with the virus and misses work. This would overcome the causal uncertainty (who knows where the worker got the virus), but it would significantly increase the premiums paid by employers and therefore put marginal employers out of business. In addition, it does not provide protection for the non-employee receiving COVID-19. and
- Laws such as the one recently passed by Utah, which provides immunity to all damage caused by COVID-19 unless caused by willful or grossly reckless behavior, could be passed. This is my preferred solution – it recognizes that the fuzziness, high frequency and heavy weight of COVID-19 are not suitable for solving illicit acts.
Compensation to COVID-19 victims is provided much more efficiently and fairly by a government fund, if so desired, which is paid from general income or a small increase in sales tax that would be discontinued after a vaccine was developed.
Take it from these cakes prof. Torts should take a break when it comes to coronavirus.
Michael Krauss is a professor of law at the Antonin Scalia Law School at George Mason University, where he teaches litigation, legal ethics, product liability and case law. Follow him on Twitter @kraussm.