Liability shields should not be free passes

As COVID-19 swept through the country, many states enacted partial liability shields for health care providers in the face of constantly evolving knowledge about the virus. Such shields are intended to prevent citizens from suing when a provider was operating with the best practices available.

This kind of protection is sensible and fair, as over the course of the disease’s spread, federal agencies and experts reversed course on numerous strategies to combat the virus ranging from masking and ventilator usage to whether patients should lie on their backs or stomachs and more.

But the liability shields must not become a free pass for organizations that ignored or failed to operate with best practices, especially long-term care facilities such as nursing homes, where the coronavirus struck with particular ferocity.

Currently, there is not a body in Pennsylvania that determines the scope of the liability shield. The state should create a commission to examine claims and evaluate their merits on an individual basis. It should include a cadre of public health experts, advocates for families and residents, scientists, unions or some other representatives of workers. It should look at what actually happened, then determine what actions deserve legal protection and what do not.

Ideally, there should be a national standard for such lawsuits, but until that comes to pass, states should create their own.

According to a state Health Department spokesperson, the question of whether a lawsuit can go forward is currently up to individual courts. But this is problematic for the likely lack of consistency.

Liability shields mustn’t be a cloak around bad behavior. They are warranted for mishaps and miscalculations that occurred as best practices were evolving, but the shields should not be used as a duck and cover for properly dealing with COVID-19 as it spread throughout the country. An expert, impartial body should give guidance.