On May 14, less than one-half an hour before the 6:00 p.m. constitutional deadline, the Missouri House passed a COVID liability bill that now heads to Governor Mike Parson for signature. Should he sign the bill (SB 51), it will have an effective date of August 28, 2021. The bill contains protections for healthcare providers, manufacturers, and businesses from tort liability related to the COVID-19 pandemic.
As discussed in our December 21, 2020 blog post, Governor Parson has encouraged lawmakers to author this sort of tort liability legislation since at least November 2020, when he issued a written proclamation on the topic. SB 51 passed the Missouri Senate in February 2021. A key benefit of the bill to defendants is protection from suits stemming from COVID-19 exposures unless a plaintiff can show clear and convincing evidence of recklessness or willful misconduct. If/when the Governor signs this legislation, we will provide additional analysis.
SB 51 comes in the wake of the filing of thousands of COVID-related lawsuits nationally. One potential unintended consequence of this legislation could be a sharp rise in COVID-related suits filed hastily in Missouri courts during the several weeks leading up to the August 28 effective date to circumvent the new law. Should this occur, many of these suits could be meritless and lacking adequate pre-suit investigation.
Assuming SB 51 becomes law, Missouri would not be alone in considering COVID-19 tort liability protections. Other states have provided this through executive order and/or legislative action. In addition, federal liability protections are already available under the 2005 Public Readiness and Emergency Preparedness (PREP) Act, which provides immunity to certain defendants, including healthcare provider defendants in certain situations.
The appropriateness of COVID-19 tort liability protections has been hotly debated among the various stakeholders, including the Missouri Chamber of Commerce, the American Medical Association, and various trial lawyer organizations. We will continue to monitor this legislation and its impact in Missouri, both inside and outside its courtrooms.
In March 2021, the Supreme Court of Missouri, in Rhoden v. Mo. Delta Med. Ctr., affirmed a jury award of $300,000 in punitive damages against a healthcare provider defendant. The majority held that the facts – which arose before Missouri’s punitive damages statute was amended - met the plaintiff’s burden of proving the defendant “showed a complete indifference to or conscious disregard for the safety of others.” Fortunately, this case should have limited impact, because 2020 changes to Missouri law on punitive damages in § 538.210.8, RSMo., made clear the legislature’s intent that a higher standard applies to healthcare provider defendants. Rather than dwell on the underlying facts of Rhoden, we will instead focus on the debate among the majority, concurring, and dissenting opinions regarding the appropriate standard for the imposition of punitive damages against healthcare providers.
In Rhoden, the Court applied a pre-amendment version of § 538.210 that permitted punitive damages against a healthcare provider only “upon a showing by a plaintiff that the healthcare provider demonstrated willful, wanton or malicious misconduct.” As discussed in our July 30, 2020 blog article, that statutory standard was undefined and has proved problematic in its application. The Rhoden Court followed opinions from lower appellate courts finding that, for purposes of punitive damages, acting “willfully, wantonly or maliciously” is the legal equivalent to acting with “a complete indifference to or conscious disregard for the rights or safety of others.” Thus, the Court held it was not a misstatement of the law or otherwise error for the trial court to have given a jury instruction with the “complete indifference to or conscious disregard for the safety of others” standard as opposed to § 538.210.8’s standard of “willful, wanton or malicious misconduct,” as the two standards were equivalent and not in conflict.
Two separate dissenting opinions criticize the majority’s position. The first focuses on the fact that punitive damages are imposed not to compensate plaintiffs, but for the purpose of punishment and deterrence, and they should rarely be recoverable in medical negligence actions and reserved solely for truly extraordinary cases. One judge observed that the healthcare provider's conduct might have been a negligent error, as the jury determined, but there was no credible claim that the physician’s conduct was tantamount to intentional wrongdoing or that the patient’s death was the natural and probable result of the physician’s treatment decisions.
A second dissenting opinion focuses on the legislative intent to establish a higher standard for healthcare provider defendants. With the 1986 amendments to § 538.210, the General Assembly intended for a higher standard for punitive damages claims against healthcare providers than the lesser standard applicable to defendants generally. In this judge’s opinion, it was unfortunate that the Missouri intermediate appellate courts (and the Supreme Court majority) failed to recognize the General Assembly’s intentional modification of the common law by holding the two standards equivalent. As mentioned above, this confusion led the General Assembly to further clarify its intent by amending § 538.210 in 2020, and state specifically that “evidence of negligence including, but not limited to, indifference to or conscious disregard for the safety of others shall not constitute intentional conduct or malicious misconduct” sufficient for punitive damages.The 2020 amendments to § 538.210 should limit the precedential value of Rhoden. However, the robust discussion in this opinion underscores the former confusion about the proper standard for punitive damages in medical negligence cases and the need for greater clarity. The 2020 amendments should bring that clarity, with a return to the original common law concept of intentional misconduct being a prerequisite for an award of punitive damages. The new law should bring into focus the heretofore blurred line between merely negligent conduct and conduct that justifies an award of punitive damages. This new law appears to offer significant protections for healthcare provider defendants, while also allowing for the possibility of a punitive damages claim, but only in the rare circumstance where the evidence would support it.
Parson's Pandemic Protections for Providers - Governor Parson Encourages Tort Liability Legislation During COVID-19 State of EmergencyDecember 21, 2020 | John Mahon, Jr.
On November 12, Governor Parson issued a written proclamation encouraging lawmakers to author new tort liability legislation insulating defendants from lawsuits arising out of the COVID-19 state of emergency that has existed since March. This effort is designed to allow these individuals and entities to continue to serve the public without threat of unnecessary and frivolous litigation. We have since learned that the Missouri legislature is not likely to address this issue until early 2021. Governor Parson seems to have reconsidered the timing for the agenda and directed the legislature to address this, not during the ongoing special session, but during the regular January session. The bill will be titled SB1.
In the statement, the Governor explained one of the main purposes of this action is to assist healthcare providers who have gone well beyond normal duty to provide exceptional care to Missourians despite great personal risk to their own health and well-being by amending and expanding upon § 44.045, RSMo, to afford liability protections for healthcare workers who provide necessary care during a declared state of emergency. Though not dealt with here, the Governor’s proclamation also identifies other organizations instrumental to COVID-19 response efforts, including product manufacturers and premises owners like schools and churches that provide fundamental societal functions. This potentially includes a new Section in Chapter 537, RSMo, to provide products liability protection for product manufacturers, designers, distributors, and sellers involved in bringing products to market in direct response to a state of emergency. It also potentially includes a new section to provide premises liability protection for exposure claims arising from a declared state of emergency.
Why Is This Necessary?
The threat of COVID litigation is real. There have been an estimated 10,000 COVID-related lawsuits filed nationally. This includes hundreds of healthcare specific suits and is almost certain to continue well into the next year and beyond.
The risk to healthcare workers is real too. As of December 21, there were almost 17.8 million COVID cases and more than 315,000 deaths in the U.S. Healthcare workers make up a significant portion of nationwide COVID-19 infections. As of July, there were 100,000 cases of COVID-19 infecting healthcare workers. By September 2020, more than 1,700 U.S. healthcare workers had died from COVID-19. Per the CDC, healthcare workers make up approximately 6% of adults hospitalized with COVID-19. Among those, 36% were in the nursing field, and 28% were admitted to an ICU. Sixteen percent required invasive mechanical ventilation, and 4% died.
None of this is surprising considering healthcare workers are on the frontline of battling this global pandemic and, in doing so, expose themselves to great personal risk each shift providing exceptional care for their communities. They must deal with the challenge not only of exposing themselves to the virus, but also observing terrible suffering and outcomes of their patients, and doing this with limited resources, equipment and healthcare staff. The author of this blog believes prudent legislative action is necessary under the circumstances and likely to be helpful in mitigating some litigation risk for healthcare professionals.
A National Approach to Liability Protections
Missouri is not the only state to consider such liability protections. Other states have provided this through executive order and/or legislative action. For example, the neighboring states of Arkansas, Iowa, Illinois, Kansas, Kentucky, and Oklahoma have already passed COVID liability protections. Many of these states’ protections afford immunity from civil damages for licensed healthcare providers but carve out exceptions for injuries or death caused by gross negligence, willful and criminal misconduct and intentional infliction of harm, and fraud.
Although there was much discussion during negotiations for a federal COVID-19 relief package as to whether it would include liability protections for healthcare providers and other businesses, in the end, no such provision was included in the $900 billion program. Though not dealt with in detail here, federal liability protections are already available under the 2005 Public Readiness Emergency Preparedness (PREP) Act, which authorizes the Secretary of the US Department of Health and Human Services to issue a declaration in response to a public health emergency. On March 10, 2020, Secretary of HHS Alex Azar issued such a declaration, effective February 4, 2020, which provides immunity to “covered persons,” such as healthcare providers, using certain “covered countermeasures,” including masks, respirators, and vaccines, that are necessary to combat the public health emergency.
The Missouri Chamber of Commerce and industry stakeholders overwhelmingly support these protections. The American Medical Association has pushed for states to pursue liability protections for healthcare professionals during the COVID-19 emergency. However, this is not without criticism, with some suggesting such policies would protect irresponsible businesses from accountability and fail to protect the public.
It is important to note that the anticipated liability protections parallel “good Samaritan” laws that have existed throughout the country for decades and afford qualified immunity from civil liability for healthcare professionals who volunteer their services as a generous compassionate act unless they engage in willful or intentional misconduct.
We will continue to follow this issue and look for activity during the January 2021 general legislative session.
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