Bill protecting Pennsylvania businesses from COVID-related lawsuits advances in Harrisburg

The Pennsylvania House has passed resurrected legislation seeking to provide additional lawsuit protections for businesses facing legal claims arising out of COVID-19-related injuries or deaths.

“These liability protections are targeted, narrow in scope and temporary, which Pennsylvania businesses desperately need as they struggle to overcome the economic challenges the COVID-19 pandemic has placed on them,” said Gene Barr, president and CEO of the Pennsylvania Chamber of Business and Industry.

Supporters of House Bill 605 contend it would prevent frivolous lawsuits from clogging up an already backlogged court system while providing plaintiffs and defendants a speedy remedy that saves legal costs.

Trial attorneys, though, countered the bill is a thinly veiled attempt to shield “negligent” companies, including long-term care facilities, from being held accountable. They point out the legislature forwarded a similar bill to Gov. Tom Wolf less than five months ago, and he vetoed it.

“They want special treatment, and it is deeply concerning that any member of the House of Representatives would support legislation that takes away the legal rights of their constituents to protect their loved ones,” said Paul Lagnese, president of the Pennsylvania Association for Justice, an organization representing trial attorneys.

The bill proposed by Rep. Torren Ecker, a Republican who represents part of Adams and Cumberland counties, would amend the state’s judicial code to provide for mandatory arbitration of civil actions alleging personal injury or death related to COVID.

The bill, part of a larger proposed business stimulus package, was passed by the House appropriations committee Tuesday, one day after it was reintroduced.

“The purpose of this legislation is to deter frivolous lawsuits that cannot be proven with legitimate evidence at trial, but will still cause significant financial strain to the defendant,” Ecker said in a co-sponsorship memo.

The representative noted that county courts have programs in place for lawsuits alleging less than $50,000 in damages. These arbitrations are meant to provide a less formal and more efficient way to resolve smaller cases faster with lower defense costs.

Under Ecker’s bill, cases alleging personal injury damage as a result of COVID-19 exposure would be subject to a similar mandatory arbitration process, but expedited for cases where defendants complied with “then-current” public health directives during the COVID crisis.

An arbitration board made up of three local attorneys in the town where the case was filed would first hear the claims; either side could still file a lawsuit in Commonwealth Court, regardless of the arbitration board’s decision.

The civil liability protections would not apply to cases where the actions involve gross negligence, willful misconduct or intentional infliction of harm, Ecker said.

“This is a commonsense approach to a problem that could tie up our legal system, hamper business growth and stifle our economy even more,” Ecker said.

A dozen states have such laws

At least a dozen states have adopted immunity for businesses to limit their exposure to COVID-19-related lawsuits with the most recent being Kentucky, according to McKnight’s Business Daily.

Wolf vetoed a similar civil liability bill in December; at the time, the governor said it proposed protections were “overly broad” and “invites the potential for carelessness and a disregard for public safety.”

Pennsylvania medical providers already have protections under an executive order Wolf’s administration issued last year. It granted liability immunity to licensed health care providers providing COVID-19-related medical services.

Philadelphia attorney Robert Sachs Jr. suggested the bill might be unconstitutional based on a decades-old Supreme Court ruling.

The state’s highest court struck down a 1976 law — the Healthcare Services Malpractice Act, which imposed “nearly identical arbitration panels,” said Sachs, whose firm handles personal injury cases with a strong focus on medical malpractice and nursing home negligence.

“The court reviewed details about the inherent cost and delay in arbitration and invalidated the legislature’s attempt to circumvent the state constitutional due process right to a jury 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 attorneys who will hear the cases on these arbitration boards. Its language suggests that if a case is appealed to the Court of Common Pleas, there will be an assessment of “fees and costs” against the “appealing party,” Sachs said.

A ‘loser-pays system’

“This is the imposition of a ‘loser pays’ system, which our civil justice system has never adopted,” he added.

Arbitration also wouldn’t save any costs for his clients, he said.

“This legislation would unfairly raise the cost of having one’s day in court,” Sachs said. “Malpractice cases require expert support before they can be filed. No case could even hope to prevail without testimony from multiple expert witnesses.”

Sachs and other attorneys said the bill clearly aimed at protecting long-term care operations, who have been at the epicenter of the COVID-19 pandemic.

Roughly 50% of more than 25,000 deaths in Pennsylvania COVID cases have been among residents of long-term care facilities, state data shows. Workers at those facilities also account for more than half of the more than 26,000 Pennsylvania health care workers who’ve tested positive for COVID.

A Pennsylvania long-term care industry leader said the House bill supports those long-term care workers who followed state and federal COVID-guidance, despite lack of personal protective equipment, testing supplies and staffing support.

“The long-term care community has followed orders and now waits vulnerable, with no protection, as an onslaught of lawsuits is set to begin,” said Zach Shamberg, president and CEO of the Pennsylvania Health Care Association, which represents more than 400 long-term care providers.

So far, at least two Pennsylvania for-profit nursing homes have been sued as a result of COVID-19 exposures. Two suits were filed against the Beaver County nursing home that was the site of the worst COVID-19 outbreak with more than 500 staff and residents testing positive and more than 70 resident deaths.

Fifteen former residents or family members of Brighton Rehabilitation and Wellness Center in Beaver County have sued the home’s owners in federal court, alleging wrongful death, corporate negligence and vicarious negligence.

The estate of a housekeeper at Brighton who died of COVID-19 last May also has filed a separate wrongful death lawsuit in federal court against the home’s owners.

Attorneys representing Brighton’s owners unsuccessfully sought to dismiss the suit involving the late housekeeper, citing federal immunity protections. The attorneys again filed a motion on the same grounds for the second lawsuit in January.

In another suit, Philadelphia attorney Martin Kardon represents the families of 11 of the 39 residents of Gardens of Steven in Lancaster County who have died since November after testing positive for COVID.

He called the bill’s arbitration provisions a “pain, but not a game changer,” because the arbitration outcome would be irrelevant.

The proposed targeted immunity is another story, Kardon said.

The providers covered under the bill will not be held civilly liable for damages or personal injuries related to COVID-19 exposure including cases resulting from a shortage of equipment, supplies or personnel, he said.

“Any health care provider caring for a patient who gets COVID is immune, absent outrageous near intentional misconduct,” Kardon added. That (proposed) law would disproportionately affect frail elderly to the benefit of profit-making businesses and hedge funds.”