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State Level Immunity From COVID-19 Related Cases

Kaden J. R. Weaver
9/25/20

Statute of Lady Justices   As more Ohio businesses, organizations and government entities reopen after the Governor’s lockdown orders, they face a legal uncertainty as to what liabilities they may face should an employee or customer contract COVID-19 (aka coronavirus) while at the facility.  These uncertainties have now been addressed with House Bill 606 (HB 606), which the Governor signed on September 14, 2020.  The bill becomes effective December 13, 2020, but is retroactive to March 9, 2020.  HB 606 grants temporary qualified immunity to specified health care providers and immunity from civil actions brought against any person if the action is based on, in whole or in part, exposure to “MERS-CoV, SARS-CoV, or SARS-CoV-2, or any mutation thereof . . .,”  more commonly known as COVID-19.  It also provides general immunity to any entity from any civil claim based on exposure to COVID-19.  However, the immunity granted in this bill is not absolute; there are exceptions to the immunity granted by this bill.

Health Care Providers

   As mentioned above, HB 606 provides qualified immunity to specified health care providers who provide services during the COVID-19 pandemic.  Specifically, Section 1(B)(1) provides:

[a] . . . health care provider that provides health care services, emergency medical services, first-aid treatment, or other emergency professional care, including the provision of any medication or other medical equipment or product, as a result of or in response to a disaster or emergency is not subject to professional disciplinary action and is not liable in damages to any person or government agency in a tort action for injury, death, or loss to person or property that allegedly arises from any of the following:

(a)        An act or omission of the health care provider in the health care provider's provision, withholding, or withdrawal of those services;

(b)        Any decision related to the provision, withholding, or withdrawal of those services;

(c)        Compliance with an executive order or director's order issued during and in response to the disaster or emergency.

A health care provider also is immune from professional disciplinary actions, as well as tort actions, for any injury, death or loss of person or property due to the fact that the provider was unable to treat, diagnose or test a person for any illness, disease or condition due to an executive or director’s order or an order the board of health of a city or general health district issues in relation to an epidemic or pandemic disease or other public health emergency.  The immunity in HB 606 only applies to health care services and decisions that are being provided as a result of or in response to a disaster or emergency and through the duration of the disaster or emergency.

   There are exceptions to this immunity.  The immunity does not apply in a tort action “if the health care provider’s action, omission, decision, or compliance constitutes a reckless disregard for the consequences so as to affect the life or health of the patient or intentional misconduct or willful or wanton misconduct on the part of the person against whom the action is brought.”  Section 1(B)(1) also does not apply to professional disciplinary actions if the health care provider’s action, omission, decision or compliance constitutes gross negligence.  Furthermore, the immunity does not extend to health care providers for actions they took “outside the skills, education, and training of the health care provider, unless the health care provider undertakes the action in good faith and in response to a lack of resources caused by a disaster or emergency.”  If one of these exceptions applies, and the health care provider does not have immunity under HB 606, the bill says no class actions may be filed against the health care provider.  The time period the immunity applies is between March 9, 2020, and September 30, 2021.  After this time period the immunity under HB 606 for health care providers will no longer be available.

Immunity for Individuals, Businesses, Organizations and Government Entities

   In addition to providing qualified immunity to health care providers, HB 606 provides general immunity to any “person” from any civil claim based on exposure to COVID-19 as long as the exposure was not due to “reckless conduct or intentional misconduct or willful or wanton misconduct on the part of the person against whom the action is brought.”  The definition of person includes individuals, corporations, business trusts, estates, trusts, partnerships, schools, for-profit or nonprofit entities, government entities, religious entities and state institutions of higher education. This part of HB 606 covers virtually all businesses and organizations that do not fall under the immunity granted to health care providers.  Like the immunity granted to health care providers in Section 1 of the bill, the immunity granted to all persons in Section 2 applies to the time period between March 9, 2020, and September 30, 2021.

   As mentioned above, the exception to the immunity provided in Section 2 of HB 606 is if the exposure to COVID-19 was due to “reckless conduct or intentional misconduct or willful or wanton misconduct.”  HB 606 defines “reckless conduct” as “conduct by which, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person's conduct is likely to cause an exposure to, or a transmission or contraction of, [COVID-19], or is likely to be of a nature that results in an exposure to, or a transmission or contraction of, [COVID-19].”  “A person is reckless with respect to circumstances in relation to causing an exposure to, or a transmission or contraction of, [COVID-19], when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that such circumstances are likely to exist.”  Like in Section 1, if, for any reason, the immunity granted to any person in Section 2 does not apply, no class action can be brought against that person alleging liability for damages for exposure to COVID-19, though they may be liable in individual actions taken against them.

   As Ohio continues to reopen, Ohio health care providers, businesses and organizations now have one less uncertainty to worry about. HB 606, while not providing universal immunity to these organizations, helps protect Ohio businesses and organizations from civil tort actions, and in the case of health care providers from, professional disciplinary actions when those actions are based on exposure to COVID-19.

   Should you have any questions regarding HB 606, please contact one of our business attorneys.

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Disclaimers:

At the date of publication the above information was correct.  It is quite possible the information above has changed as COVID-19 is a rapidly evolving situation. 

The article in this publication has been prepared by Eastman & Smith Ltd. for informational purposes only and should not be considered legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney/client relationship.