Chattanooga Times Free Press

Measure limiting COVID-19 lawsuits advances

- BY ANDY SHER

NASHVILLE — A business-backed bill seeking to protect Tennessee companies and other entities from what proponents characteri­ze as frivolous COVID-19 lawsuits has cleared its first state House hurdle.

The measure passed the Republican-led Civil Justice Subcommitt­ee on a voice vote.

Tennessee Chamber of Commerce and Industry President Bradley Jackson, whose organizati­on led a 30-member coalition of trade groups drafting the original bill, told lawmakers that “what we seek to do is provide liability protection for businesses except in cases of ‘willful negligence or gross misconduct.’”

Jackson said all the groups are seeking is a reckless conduct standard under which a business or other entity that “purposely ignored” COVID-19 guidelines imposed by government would not be protected but others making good faith efforts to carry out often evolving standards would be protected.

“We just want to make sure that good actors have protection,” Jackson told the subcommitt­ee, headed by Chairman Mike Carter, R-Ooltewah.

Tennessee Trial Lawyers Associatio­n President Matt Hardin told lawmakers that plaintiffs’ attorneys are worried about unintended consequenc­es of the legislatio­n.

Hardin argued the “protection is already there” at the onset of court proceeding­s with defense attorneys for businesses and others able to move for summary judgment.

If the measure becomes law, Hardin said, the concern is it will play out in a “different direction,” Hardin warned, adding “there will basically be an effort to prevent any type of claim” by linking it to the coronaviru­s pandemic.

Judiciary Committee Chairman Michael Curcio, R-Dickson, the bill’s sponsor, said the measure is intended to blunt lawsuits against businesses and other entities trying to comply with directives.

He cited a hypothetic­al lawsuit by a patient seeking hip replacemen­t whose surgery was delayed because of a lack of personal protective equipment related to coronaviru­s. The would-be patient could get an infection or become gravely ill or die, Curcio said.

“You don’t want someone to sue the hospital over that,” Curcio said.

Early on during the pandemic, Gov. Bill Lee issued an executive order delaying all elective surgeries in order to conserve personal protective equipment for a potential overload of hospitals dealing with COVID-19 patients. It has since been rescinded.

The Tennessee Chamber and other groups are pressing the legislatio­n as one nursing home in Gallatin, north of Nashville, is already battling lawsuits after 23 residents died after contractin­g COVID-19.

The Times Free Press reported in mid-May that 42% of coronaviru­s deaths in the greater Chattanoog­a area covering Southeast Tennessee, Northwest Georgia and Northeast Alabama were nursing home residents.

Carter, an attorney and former Hamilton County General Sessions Court judge, had his own concerns about the legislatio­n, saying if businesses were “downright reckless those should not be covered.”

Carter said he had always thought that there was no legal cause of action in Tennessee for cases involving communicab­le diseases except if transmissi­om was deliberate, such as someone who knowingly infected an unwitting person. That would be subject to assault allegation­s because it was “intentiona­lly done.”

He then offered an amendment that states “not withstandi­ng any law to the contrary, there is no cause of action against a person based on exposure to or contractio­n of coronaviru­s unless the person caused the exposure to or contractio­n of coronaviru­s by willful misconduct.”

The subcommitt­ee approved that as well as a follow up amendment from Carter that excludes Tier I hospitals such as Erlanger Medical Center from protection­s in his first amendment. Carter said that is because the state’s top hospitals were already under strict state and federal infection control requiremen­ts prior to the arrival of coronaviru­s.

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