Liability Protection for Health Care Providers and Businesses Related to COVID-19
Last month, Governor Mike DeWine signed Amended Substitute House Bill No. 606 (“H.B. 606”) into law. The new law provides protection to health care providers and businesses from tort liability related to COVID-19.
H.B. 606 enacts three temporary, uncodified law sections. Section 1 creates certain qualified immunities for medical professionals, section 2 does the same for “any person,” and section 3 consists of legislative findings and statements of intent. The emergency clause in the Senate version of the bill was removed in conference committee, so the law goes into effect on December 13, 90 days from its enactment. However, both section 1 and section 2, by their own terms, apply from March 9, 2020, the date that Governor’s Order 202001D, declaring a state of emergency due to COVID-19, was issued, through September 30, 2021. Putting the start date for the application of this law in the past may invite a challenge under Article II, Section 28 of the Ohio Constitution, which states that “[t]he general assembly shall have no power to pass retroactive laws[.]”
Section 1 of the Bill
Section 1, covering medical professionals, supersedes Ohio Revised Code (“R.C.”) 2305.2311 of the during the period in which the temporary law is in effect. R.C. 2305.2311 provides immunity for care given during a disaster. H.B. 606 is broader in certain respects, though some are quite minor and technical. While immunity under R.C. 2305.2311 is limited to those providers acting as a result of a “disaster,” H.B. 606 adds “or emergency” to this limitation, broadening it slightly. While “disaster” refers to an actual “occurrence of widespread personal injury or loss of life” that is declared a disaster by the federal, state, or local government, “emergency” refers to a period of time during which an emergency has been declared by Congress or a chief executive (federal, state, or local). Thus, there could be an emergency even in the absence of a disaster.
As compared with R.C. 2305.2311, H.B. 606 increases the health-related job types that are granted immunity. Another difference is its definition of “tort action” for which the law provides immunity. Both laws include standard torts such as actions for damages for injury, death, or loss to person or property. But under R.C. 2305.2311, “tort action” excludes “a civil action for damages for a breach of contract or another agreement between persons or governmental entities.” Under H.B. 606, “tort action” exchanges that language for “includes contractual claims arising out of statutory or regulatory requirements applicable to health care providers.” “Tort action” also includes “claims arising under resident or patient bills of rights” under the new law.
The new, temporary law is also broader than R.C. 2305.2311 in that while the latter only applies immunity for “emergency medical services, first-aid treatment, or other emergency professional care,” H.B. 606 includes run-of-the-mill “health care services” as well. Moreover, while R.C. 2305.2311 applied to “an act or omission” of the provider within the provision of those emergency services, H.B. 606 adds two additional spheres of immunity: “any decision related to the provision, withholding, or withdrawal of those services” and “compliance with an executive order or director’s order issued during and in response to the disaster or emergency.” Whether these truly add anything to the already general terms, “act or omission,” they seem to indicate a legislative desire to cover intentional decisions in addition to oversights that might occur during the provision of emergency care.
Both R.C. 2305.2311 and H.B. 606 exclude from immunity acts that constitute “reckless disregard for the consequences so as to affect the life or health of the patient.” H.B. 606 adds to this exclusion “intentional misconduct or willful or wanton misconduct on the part of the person against whom the action is brought.”
Under H.B. 606, a health care provider is not subject to professional disciplinary action or liable in damages in a tort action “for injury, death, or loss to person or property that allegedly arises because the provider was unable to treat, diagnose, or test the person for any illness, disease, or condition,” if that inability results from an executive or director’s order, or the order of a local health official, if that order was issued in relation to an epidemic, pandemic, or other public health emergency. This language apparently protects medical providers from lawsuits related to their inability to see patients or perform certain procedures (elective procedures are specifically included) if that inability results from a government order. There is an exception from immunity from professional disciplinary action “if the health care provider’s action, omission, decision, or compliance constitutes gross negligence.” Section 1(B)(3).
One provision of R.C. 2305.2311 is left out of H.B. 606. The entirety of R.C. 2305.2311 “does not apply to a tort action alleging wrongful death,” even if the other conditions for immunity are met. There is no exception for wrongful death actions in H.B. 606.
Section 2 of the Bill
Section 2 does not temporarily supplant a specific section of the Revised Code; rather, it provides, until October 1, 2021, broad immunity for “any person” from having to face a civil action for damages if the cause of action upon which the suit is based, “in whole or in part, is that the injury, death, or loss to person or property is caused by the exposure to, or the transmission or contraction of,” COVID-19 or similar corona viruses. Section 2(A). Exceptions exist for reckless conduct or intentional misconduct or willful or wanton misconduct on the part of the defendant.
“Person” includes not just individuals but all business entities as well as trusts and estates, schools, nonprofit, governmental, and religious entities, and state institutions of higher education. Thus, Section 2 provides immunity for all forms of businesses, nonprofits, educational and religious institutions, and government entities.
The section also provides that government orders, recommendations, and guidelines do not create a duty of care that may be enforced in a cause of action, nor do they create a new cause of action or legal right against any person with respect to the matters contained in the orders, recommendations, and guidelines. The bill creates a presumption that such orders, recommendations, and guidelines are “not admissible as evidence that a duty of care, new cause of action or substantive legal right has been established.” Section 2(B). This provision would, for example, ensure that a lawsuit cannot be brought against a business for damages allegedly caused by the violation of a public health order such as a state or local requirement that employees wear a mask.
Both Sections 1 and 2 provide that if the immunity created by each of those sections does not apply, meaning there is a cause of action leading to potential liability, a class action lawsuit is not allowed on that cause of action.