How will plaintiffs prove where they caught virus?
Senate Majority Leader Mitch McConnell wants to shield businesses from the impending “lawsuit pandemic” following the coronavirus outbreak.
Health care companies have asked Gov. Gavin Newsom for protection from coronavirus suits in California, while Democratic lawmakers have proposed making it easier for health workers, police and firefighters to win benefits.
But the first legal barrier facing victims of COVID19, and their families, is showing that their employer — or their doctor, hospital or grocer — caused the illness.
“That is very tricky in these cases,” said Robert Rabin, a Stanford law professor whose specialty is torts, or suits for personal injuries.
Even under workers’ compensation, a statefunded insurance system designed to protect employees, “you still need to show a causal link — the harm has to arise out of workplace activity,” Rabin said. “You’re exposed to other people, family, maybe friends, if you take the train to work, if you go shopping. You have to show it’s more likely than not” that the infection began at work.
“If you worked in a hospital or a nursing home where an outbreak occurred, it’s easier (to prove) than at a grocery store. But it’s still timeconsuming,” said Julius Young, an Oakland attorney who represents employees in compensation cases and blogs about the subject at workerscompzone.com.
As a shortcut, the State Compensation Insurance Fund, California’s largest workers’ compensation insurer with 11% of the market, has announced that it will approve benefits for employees classified as “essential” who have been diagnosed with the coronavirus, without having to prove that they caught it at work. They include health care professionals, emergency response personnel, law enforcement and grocery workers.
State Sen. Jerry Hill, DSan Mateo, has introduced SB1159, which would provide compensation for workers who were employed to combat the coronavirus, unless their employer could prove the illness arose elsewhere. On the other side, health care trade associations, citing their need for resources during the emergency, asked Newsom on April 9 for an executive order granting immunity from lawsuits by patients except in cases of “willful misconduct.” The governor has not responded.
Cheryl Wallach, a plaintiffs’ lawyer in Los Angeles, said California has recognized workers’ compensation for exposure to airborne illnesses since at least 1942, when the state Supreme Court upheld benefits for a coffee salesman assigned to a San Joaquin Valley route where he inhaled spores that caused valley fever.
Nationally, McConnell, RKy., said funding for state
and local governments, withheld from the most recent coronavirus relief legislation, would be included in the next bill only if it also protected businesses nationwide from negligence suits by victims.
“The trial lawyers are sharpening their pencils to come after health care providers and businesses,” McConnell told Fox News on Monday.
Such legislation would not be unprecedented; Stanford’s Rabin cited the 2005 federal law that protects gun manufacturers from damage suits by victims of criminal gunfire. But he said any federal immunity law would probably apply only to future cases of the coronavirus and would not be retroactive, under court doctrines and constitutional guarantees.
And Young, the Oakland attorney, said a federal law would almost certainly be limited to damage suits by business customers and patients and would not apply to stateregulated workers’ compensation systems.
An employee seeking workers’ compensation is entitled to a statefunded medical examination by a physician who considers the patient’s health history, working conditions and other circumstances and determines whether it was more likely than not that the illness was contracted at work.
If so, the employee is compensated for a portion of lost wages, currently a maximum of $1,300 a week, for up to two years, and the costs of medical treatment. Young said employees unable to return to work can receive vouchers for $6,000 or $11,000, depending on their disability, and those who are permanently disabled can get lifetime benefits.
The compensation, however, does not include any amounts for pain and suffering or emotional distress, which are available only in damage suits. Employees can file such suits by alleging that their employer knowingly exposed them to the coronavirus — withholding masks, for example, when coworkers or customers were coughing — but the typical suit is a negligence claim by a business customer or other nonemployee.
Negligence might be found, for example, in “a barbershop where barbers were not provided gloves, or not provided enough gloves to change between customers, or a restaurant where a cook wasn’t wearing protective gear,” said Dorit Reiss, a law professor at UC Hastings in San Francisco.
U.S. courts have long recognized negligence suits related to infections, Reiss said. She cited a ruling in 1884 by a federal court in New York allowing the owner of a boardinghouse to sue parents who neglected to tell the owner that their children had whooping cough, which infected an owner’s child and other residents. And in 1919, a New York court allowed a suit against the city of Rochester by a resident who came down with typhoid fever after the city dumped wastes into a river that supplied water to the area.
There’s also likely to be “a lot of fighting over who’s an employee or an independent contractor,” said Catherine Fisk, a UC Berkeley law professor. While drivers for companies like Uber and Lyft are generally entitled to more benefits if classified as employees — an issue California voters will decide in November — drivers infected with coronavirus could pursue negligence claims if they are contractors, as the companies contend.
Companies with multiple employees afflicted by the disease might also be sued by members of the community for creating a “public nuisance,” a use of private property causing harm to others, said Michael Rubin, a plaintiffs’ lawyer in San Francisco. His firm was involved in a precedentsetting case in which paint companies agreed last year to pay $305 million to 10 California cities and counties for the cost of removing childendangering lead paint from tens of thousands of older homes.
Overall, said Reiss, the costs of virusrelated litigation will be so staggering that “it might make sense to say this shouldn’t go through the court system. Let’s create a compensation system, have the government pay, nofault,” and businesses might be more likely to reopen.
Maybe so, said Fisk. But if a fund compensated victims and their survivors, for example, who became infected at a premature street parade, “suppose you were tourists at Mardi Gras when you got it, as opposed to those who had to work there. Is someone getting drunk on Bourbon Street entitled to compensation?”