Debate over COVID-19 liability playing out in CT
The debate over whether places like nursing homes, hospitals and companies should face liability for COVID cases is playing out in the state legislature.
A month after Gov. Ned Lamont ended legal immunity protections in the pandemic for hospitals and nursing homes, the General Assembly seems less likely to either restore them, or extend proposed shields to other locations.
But state Rep. Craig Fishbein, R-Wallingford, rank
ing member of the Judiciary Committee, is worried that some well-meaning companies might become targets for frivolous lawsuits, even though it’s nearly impossible to prove when and where a patient may have contracted COVID-19.
“Cleaning companies have contacted me to say in the pandemic they are being asked to give a level of assurance that a facility is sanitized, and they are concerned about liability,” Fishbein said in a Friday interview. He said that companies and other entities that follow the guidance of Lamont and the state Department of Public Health shouldn’t be exposed to legal action.
Fishbein and other House Republicans sponsored legislation that would protect from lawsuits the businesses, nonprofit organizations, schools, towns and state agencies that safely reopened in the pandemic. The proposal turned into a bipartisan committee bill that would allow immunity from civil liability to any entity that observed health and safety guidelines.
“I don’t know whether anybody would actually prove being at a certain place at a certain time and exposed to activities could prove a cause of COVID, given its rampant and contagious nature,” Fishbein said.
A related bill would allow nursing homes to be sued for injuries resulting from a failure to comply with standards of COVID-19 care. Fishbein doubts that either bill will make it out of the committee next week, when the Democratic-dominated panel votes on a variety of bills.
“To take a guidance standard and use that to impose liability on nursing homes would be very unfair and unprecedented,” said Matthew Barrett, president and CEO of the Connecticut Association of Health Care Facilities / Connecticut Center for Assisted Living, in a Thursday interview. Barrett recalled that public health standards and practices changed many times since March of last year when Lamont first declared the public health emergency.
“A longstanding and well-developed right of action to sue for negligence already exists under the common law, and therefore passage of this bill is unnecessary to protect the rights of individuals to bring claims arising from COVID-19,” said Heather O. Bercham, attorney for the association, in testimony before the Judiciary Committee.
State Rep. Steve Stafstrom, D-Bridgeport, cochairman of the Judiciary Committee said Friday he’s not sure whether either bill is needed. They are too broad in scope and don’t take into account that current law allows patients and nursing home residents and their their families - to sue facilities if their care violates health protocols.
Conversely, companies and nonprofits that act in good faith within health and safety guidelines are already protected from liability suits under current law, he said.
“In order to establish liability in personal injury or wrongful death, you have to prove they breached the duty of care, so if someone in good faith tried to comply with the CDC and (state Department of Public Health) directives, I don’t believe a court of law could fine that you breached your duty of care,” Stafstrom said.
He gave the hypothetical example of two restaurants. One spaced tables properly, six feet apart, but during a cleaning, a staff member accidentally puts a pair of tables five feet apart. At the second restaurant, management tries to fit in more diners and places tables five feet apart.
“The first restaurant should not face a liability, but the second could,” said Stafstrom.
Among those supporting the expanded-immunity bill was the Connecticut Campground Owners Association, who wrote that since camping has inherent risks, dangers can arise. “This is not about protecting campground owners from negligence on their part; it is designed to shield them from liability for injuries that may occur because of campers encountering risks that exist in the natural world and are beyond the campground owners/operators control,” the association wrote in testimony for a recent public hearing.
Mark R. Nemec, president of Fairfield University, told the committee that the college has already spent about $10 million in COVID related expenses.
“Some may argue that any institution that follows public health standards will prevail in litigation, and thus a safe harbor is not needed,” Nemec said in prepared testimony for the committee. “However, the direct and indirect cost of successfully defending lawsuits will nonetheless be very high at a particularly fraught moment when time and resources across the sector have never been more strained. Moreover, insurance for pandemic risks is limited or unavailable, creating significant financial exposure.”
Supporters of the proposed immunity expansion include the National Federation of Independent Business, representing smaller companies; and the New England Convenience Store & Energy Marketers Association.
But Kelly McConney Moore, senior policy counsel for the American Civil Liberties Union of Connecticut said the bill would likely shield the state Department of Correction, which oversaw prison operations where 4,200 inmates contracted COVID and 19 died.
“Even if the DOC’s ‘health and safe operations guidelines’ were created carefully, the contents of those guidelines were probably inherently negligent, since they made it difficult or impossible for incarcerated people to properly distance, sanitize, hand wash, or take other commonsense, reasonable steps to stay safe from COVID-19,” Moore said in prepared testimony. “To give the DOC a free pass for these decisions, just because they were following the rules they themselves made, encourages negligent rule-making.”
Kathleen Flaherty, executive director of the Connecticut Legal Rights Project, Inc., told the committee that she favored making it easier for people to sue hospitals and nursing homes, but she also opposed the bill that would to expand legal immunity.
“When COVID-19 first struck the state, providing civil immunity to hospitals and long-term care facilities made sense – everyone was trying to do the best they could with a novel coronavirus,” Flaherty said. “Now we know what works to control the spread of infection, and continued immunity is inappropriate.” But she said the standard for “gross negligence or willful misconduct” is too high in the other piece of legislation.
The deadline for the Judiciary Committee to act is Friday, April 9.