Legal shield:

Arizona bill would protect businesses from liability during state of emergency

PHOENIX – Citing the unusual circumstances of the pandemic, a legislative panel voted Thursday to provide some protections from lawsuits for medical professionals and business operators.

SB 1377, approved on a party-line vote by the Senate Judiciary Committee, spells out new standards for any legal action filed during a state of emergency. Retroactive to March 11, when Gov. Doug Ducey declared the current emergency, it would make it more difficult for someone to sue for death or injury.

The vote came despite questions about whether lawmakers were erecting unnecessary – and insurmountable – new hurdles in the path of those who were injured due to someone else’s negligence. Barry Aarons, lobbyist with the Arizona Trial Lawyers Association, said the wording would effectively close the courthouse doors to people with legitimate claims of negligence. And he suggested that even if lawmakers approve SB 1377 it could be voided as running afoul of constitutional protections of the right of individuals to sue for damages.

But Republican lawmakers on the panel instead sided with business and medical interests.

“SB 1377 will provide some level of legal predictability for small businesses during times that may be very unpredictable,’’ said Chad Heinrich, state director of the National Federation of Independent Business.

He said one of those uncertainties is whether they will be sued even if they take efforts to keep customers and patients safe.

“That fear is holding small business owners back from making decisions to grow and expand

their business,’’ Heinrich said. And even if a business has done nothing wrong, he said just the threat of litigation and the cost of fighting lawsuits can cause companies to settle out of court.

The legislation raises the bar.

Under normal circumstances, lawsuits for death and injury generally have to show only that the individual or business was negligent. That often requires a showing that the actions they took fell below the acceptable standard of care.

Then a jury makes a decision based on a “preponderance of the evidence’’ standard, meaning whether it is more likely than not that there was negligence.

SB 1377 alters both of these.

First, it requires a showing not of simple negligence but that the person “failed to act or acted with willful misconduct or gross negligence.’’ And a jury would have to believe the allegations were proven by “clear and convincing evidence,’’ a higher standard than simple preponderance.

And there’s something else. It provides a defense to a lawsuit saying that someone is presumed to have acted in good faith if there was at least a reasonable effort to comply with guidelines for operating during the pandemic issued by a state or federal agency.

“It protects responsible actors,’’ said Courtney Coolidge, a lobbyist for the Arizona Chamber of Commerce and Industry. She said 23 other states already have adopted similar laws.

Coolidge also said this does not immunize businesses for failing to protect employees, saying it does not overrule existing workers’ compensation laws that guarantee benefits for people injured in work-related incidents.

“We don’t prevent in this bill legitimate claims,’’ said Steve Barclay, lobbying for two doctor organizations.

“But we set a higher standard ... in emergent-type standards,’’ he said. “Our workers deserve this protection.’’

Kathy Busby, lobbying for the Arizona Nurses Association, told lawmakers about members working under stress at hospitals with limited staff.

“They’re concern was that if they were not able to provide the level and standard of care that they normally would, would their license be in jeopardy, would they be liable for lawsuit because of that,’’ she said.

Busby said some have been told that if they can’t provide care at the expected level they should just quit.

“And we certainly don’t want that in the middle of the pandemic,’’ she said.

Rep. Kirsten Engle, D-Tucson, questioned the need to make it harder to sue, even with the emergency. She said she has been able to find just three lawsuits in Arizona tied directly to negligence related to COVID-19.

More to the point, Engle suggested the verbiage was far too broad.

For example, she pointed out that the legislation provides liability protection not only those who actually complied with the standards set forth by state or federal officials but also those who only attempted to comply, “giving liability protection to those who may have tried but didn’t try hard enough.’’

“And yet both of them we’re going to treat the same,’’ Engel said.

Dana Kennedy, state director for AARP, had more specific concerns, saying that SB 1377 would effectively immunize nursing homes and assisted living facilities who have not been properly taking care of patients.

“The difference between a typical business and a long-term living facility during a pandemic is clear,’’ Kennedy said. “Consumers can choose their level of risk and longterm care residents don’t.’’

What makes that even more critical, she said, are the rules enacted by the state limiting the ability of others to check on the welfare of residents.

“They were locked in and families were locked out,’’ Kennedy said.

That still leaves the Arizona Constitution. It says the right to sue to recover damages for injuries “shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation.’’

Aarons told lawmakers that all the conditions they are putting on people before they can collect for damages effective is “denying access to the courts.’’

Sen. Martin Quezada, D-Glendale, said he will bring up that issue when the measure now goes to the Senate Rules Committee which is supposed to consider the constitutionality of legislation.