Laws Shield Hospitals From Families Who Believe Loved Ones Contracted Covid as Patients

USA Today/Kaiser Health News
Friday, December 24, 2021

After Amanda Wilson lost her son, Braden, 15, to covid-19 in early 2021, she tried to honor his memory. She put up a lending library box in his name. She plans to give the money she saved for his college education to other teens who love the arts and technology.

But in one area, she hit a brick wall: attempting to force change at the California hospital where she believes her son contracted covid in December 2020. While seeking treatment for a bleeding cyst, Braden was surrounded for hours by coughing patients in the emergency room, Wilson said. Yet, she said, she has been unable to get the hospital to show her improvements it told her it made or get a lawyer to take her case.

“I was pretty shocked,” Wilson said. “There’s truly no recourse.”

Throughout the pandemic, lawmakers from coast to coast have passed laws, declared emergency orders or activated state-of-emergency statutes that severely limited families’ ability to seek recourse for lapses in covid-related care.

Under such liability shields, legal advocates say, it’s nearly impossible to seek the legal accountability that can pry open information and drive systemic improvements to the infection-control practices that make hospitals safer for patients.

“Lawsuits are there for accountability and truth to be exposed,” said Kate Miceli, state affairs counsel for the American Association for Justice, which advocates for plaintiff lawyers. “These laws are absolutely preventing that.” …

The avalanche of liability shield legislation was pitched as a way to prevent a wave of lawsuits, Miceli said. But it created an “unreasonable standard” for patients and families, she said, since a state-of-emergency raises the bar for filing medical malpractice cases and already makes many lawyers hesitant to take such cases.

Almost every state put extra liability shield protections in place during the pandemic, Miceli said. Some of them broadly protected institutions such as hospitals, while others were more focused on shielding health care workers.

Corporate-backed groups, including the American Legislative Exchange Council, the U.S. Chamber of Commerce Institute for Legal ReformAmerican Tort Reform Association and the National Council of Insurance Legislators, helped pass a range of liability shield bills across the country through lobbying, working with state partners or drafting forms of model legislation, a KHN review has found.

William Melofchik, general counsel for NCOIL, said member legislators drafted their model bill because they felt it was important to guard against a never-ending wave of litigation and to be “better safe than sorry.”…

Joanne Doroshow, executive director of the Center for Justice & Democracy at New York Law School, said such powerful corporate lobbying interests used the broader “health care heroes” moment to push through lawsuit protections for institutions like hospitals. She believes they will likely worsen patient outcomes.

“The fact that the hospitals were able to get immunity under these laws is pretty offensive and dangerous,” she said.

Some of the measures were time-limited or linked to public emergencies that have since expired, but, Miceli said, more than half of states still have some form of expanded liability laws and executive orders in place. Florida legislators are currently working to extend its protections to mid-2023.

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