On May 11, attorneys general from 21 states wrote to the Senate Judiciary Committee’s chair and ranking member, requesting federal liability protection to help mitigate the threat of frivolous litigation related to COVID-19. I am a defender of Common Law state tort liability, but I firmly agree with the attorneys general that immunity is needed. They can provide it themselves, though. Here’s why.
American Common Law tort is ideally suited to address types of injury repeatedly committed by man against man. Our system’s genius is its gradual, from-the-bottom, precedent-based approach to human behavior over extended periods of time. Alas, the pandemic doesn’t allow the Common Law’s accreted wisdom to prevail. That’s because the public health crisis is high frequency, high severity, and foggy.
COVID-19 is high frequency — that is, the triggering event (positive viral infection) is sudden and common for a relatively short period of time. The virus is high severity for those seriously infected. This means there is little or no chance for customary care practices to develop as stable commercial and professional responses to the virus. As our British cousins say, COVID-19 is “one-off” — and the more an event is one-off, the less valuable is tort law’s gradual and incremental approach.
This is especially the case when the legal issues also are foggy, as they most surely are here. Tort liability essentially requires two criteria — wrongdoing (negligence) and causation — and as regards COVID-19 both are opaque.
What is negligent? How much pre-testing of a patient/client should a professional or merchant do before interaction occurs? Should high-risk customers (say, senior citizens or people prone to diabetes) be discriminated against and handled differently? What is the reasonable standard of care for barber shops, restaurants, hardware stores, dentists? Scientific recommendations here vary weekly, if not daily. No standard can develop in useful time.
When is there causation? Which interaction out of hundreds caused a victim to contract the virus? Some have suggested that the incubation period might be as long as three weeks, even if it is often shorter. There are reports of patients testing positive, then negative, then positive again. No persuasive proof of the exact cause of most individuals’ infection will be available.
Some subsets of potential defendants, usually medical personnel, have been granted tort immunity by state laws, and (of dubious constitutionality) by governors’ executive orders.
And two federal laws have come into play. The president has compelled production of certain items — ventilators, masks, etc. — by certain companies under the Defense Production Act. That act forecloses liability “for damages or penalties for any act or failure to act resulting directly or indirectly from compliance with a rule, regulation, or order,” so it might protect General Motors if the design of a ventilator it was compelled to produce was attacked. And if you are taking care of a COVID-19 patient using currently established countermeasures, you likely have immunity in state and federal courts under the Public Readiness and Emergency Preparedness (PREP) Act.
PREP declarations by the Health and Human Services (HHS) secretary provide immunity from liability, except for willful misconduct, for claims of loss caused by the use of these countermeasures (approved medications, procedures and masks). PREP should provide protection to medical personnel and manufacturers if victims claim their work or their product was defective. But PREP doesn’t protect all probable defendants, not even all medical practitioners. For example, what happens if a patient gets COVID-19 while the doctor is treating her for a different condition?
What happens when someone who tests positive for COVID-19 claims that two weeks earlier he got a haircut, or dined in a restaurant, or bought something at the hardware store? No matter how many precautions were taken in those establishments, more always could have been done.
None of this would be insuperable for American tort law to handle — people sue each other for negligence every day. But a high frequency, high severity, foggy crisis does not allow for objectively accurate adjudication. Our tort system is characterized by jury trials and by the “American rule,” whereby a winning defendant cannot force the plaintiff to pay for the defendant’s legal fees. Thus, “nuisance suits” for foggy COVID-19 injuries — suits unlikely to prevail, but intrinsically uncertain — often are cheaper for defendants to settle than they are to contest. Plaintiffs’ lawyers know this, and payoffs await them for suing.
One might object that merchants have, or should have, liability insurance that would pay for legal fees if they are sued. But insurance costs money, and a huge increase in litigation will result in premium increases that will price undercapitalized merchants out of business. What’s more, many liability policies contain an exception for viruses that cause illness but no physical damage.
Even for defenders of Common Law tort like me, immunity against liability for negligence — but not for intentional misdeeds or grossly reckless behavior — is appropriate in the case of COVID- 19. This immunity could take several forms:
- HHS could vastly extend PREP beyond medical caregivers and manufacturers to encompass all merchants dealing with the virus in any way. This would, in my opinion, pose constitutional problems, though, as tort law is historically for the states to organize;
- Consent forms waiving liability could be required and signed by all merchants. But these often are not respected by courts, who might deem them unconscionable and “imposed” by merchants, and clearly would slow down commerce. Imagine signing a form before entering every grocery store or bus or each stall at a farmer’s market;
- Regulators could set standards of reasonable care for each and every industry and service sector, and provide that meeting that standard creates a safe harbor against tort liability. One problem with this approach is that the science is so foggy, and so rapidly evolving, that government regulations might be both suboptimal and rapidly superseded;
- Workers’ Compensation laws could be deemed statutorily to protect every employee who comes down with the virus and misses work. This would overcome causal fuzziness (who knows where the employee caught the virus), but it would vastly increase premiums paid by employers and therefore put marginal employers out of business. In addition, it provides no protection for the non-employee who gets COVID-19; and
- Statutes such as the one recently adopted by Utah, which provide immunity for all harm caused by COVID-19 unless caused by intentional or grossly reckless behavior, could be adopted. This is my preferred solution — it recognizes that the fuzziness, high frequency and high severity of COVID-19 do not lend itself to tort resolution.
Compensation for COVID-19 victims is much more efficiently and equitably provided by a government fund, if such is desired, paid for out of general revenues, or perhaps a tiny sales tax increase that would cease once a vaccine has been developed.
Take it from this torts prof. Torts should take a time out when it comes to coronavirus.
Michael Krauss is a professor of law at Antonin Scalia Law School, George Mason University, where he teaches torts, legal ethics, products liability and jurisprudence. Follow him on Twitter @kraussm.