Close your eyes and imagine the future. Do you see visions of a new stimulus package? Alas, an obstacle stands in the way of our dreams, and it takes the shape of one Mitch McConnell. The Senate majority leader has imposed several conditions on a new round of aid, which have in turn prevented both parties from reaching a workable agreement. The underlying source of disagreement is related to the Republican Party’s economic dogmas. A bail out for struggling households — and small businesses, and state governments — requires a lot of public spending, which they tend to oppose. At the same time, the party is seeking broad protection for big businesses.
As proof, look no further than McConnell’s battle to attach a “liability shield” to any stimulus package. He shares this priority with the Trump administration and other Senate Republicans, who have been pushing since the summer for federal liability shields that would restrict COVID-19 related lawsuits. The White House’s proposed $916 billion rescue package includes what Treasury Secretary Stephen Mnuchin has called “robust” protections “for businesses, schools, and universities.” Industry groups say that without immunity from liability, they’ll face excessive litigation. Various Republican senators have suggested different routes to the same goal. McConnell’s shield would last until 2024, but a proposal from Senator Mitt Romney would only cover 2020. There’s some bipartisan support for “a six-month moratorium” on the lawsuits, the Wall Street Journal has reported.
But consumer advocates strongly oppose the notion of any liability shield. They say that if McConnell and the White House win their fight, Americans would lose a key way to hold businesses, schools and nursing homes accountable for dangerous acts of negligence during the pandemic.
Timothy Lytton, a law professor at Georgia State University, told Intelligencer that under current law, businesses must “exercise reasonable care” to protect patrons from illness or injury. “If you’re a supermarket and there’s a spill, you need to put up a sign that there’s a wet floor and send someone to mop it up right away,” Lytton explained. “The same is true with regard to COVID transmission.” Businesses don’t have a legal obligation to reduce transmission risks to zero, he added, but they do have to be prudent. That means they have to follow local public health guidelines on social-distancing and mask usage.
Of course, some businesses flout the rules. Consider Mac’s Public House on Staten Island, which opened for bar service to spite state and city restrictions. (The owner, Danny Presti, later ran over a deputy in the process of evading arrest.) Anyone who went to that happy hour and later tested positive for COVID-19 could sue Presti for exposing them to unreasonable risk. But Lytton said a lawsuit like that is unlikely to succeed, for two reasons. “The first is COVID-19 is endemic in the population,” he said. It would be difficult for someone to prove they got the virus at Mac’s, and not the local supermarket. The second reason, he added, is that if you show up to happy hour, and nobody’s wearing a mask inside a place you know to be a viral petri dish, “then you’re barred from recovery because the law says that you assumed the risk.” The law sets high standards for successful personal injury or wrongful death suits. Since the beginning of the pandemic, states like Ohio and Tennessee have raised the bar even higher, passing their own liability shields at the behest of well-connected industries.
As a result, lawsuits over COVID-19 have been rare throughout the pandemic. A Washington Post analysis found that 234 personal injury or wrongful death lawsuits have been filed due to COVID-19; most from patients in assisted living facilities or from patrons of cruise ships engulfed by the virus early in the pandemic. Instead, the Post said, it’s far more common for businesses to sue insurers or even state and local governments over service interruptions and restrictive safety guidelines. There is no wave of litigation against businesses. McConnell’s demand for a liability shield targets a problem that doesn’t really exist.
So why the fixation? Lytton has an idea: Lobbyists. “In most areas of public policy, there are groups that advocate for certain reforms,” he said. “Then they wait around for some crisis to come along where they can present their reform as a solution to the problem of the day.” With just such a crisis at hand, representatives for the hospital and nursing home industries have lobbied hard for liability protections at the state and federal level. Mark Parkinson, the president of the American Health Care Association, told Time magazine that the for-profit nursing homes his group represents need state-level shields “to provide care during this difficult time without fear of reprisal.”
But that explanation doesn’t persuade Sam Brooks, project manager for The Consumer Voice, an advocacy organization for patients in long-term care. The GOP’s desired shield is unnecessary, he told Intelligencer, and would “have a devastating, long-lasting effect on residents and will increase harm, including death, should it pass.”
“It would be like driving on a highway where no one had to act reasonably,” he added. And the shield would arrive at a critical moment for nursing home residents and staff. Over 90,000 people in long-term care have died from COVID-19 across the country, the Associated Press reported in mid November. That death toll is horrifying enough on its own, but it has also created a secondary wave of injuries and premature deaths. According to the same report from the AP, the pandemic has depleted staffing levels at such facilities, which has contributed to a corresponding rise in deaths from outright neglect, and from the psychological consequences of isolation and fear.
Though the bar to file a successful personal injury suit is high, the possibility of a suit can still be “a terrific deterrent” against unsafe business practices, said Lytton, the law professor. Brooks agreed. Removing the right to sue over COVID-19, he said, “would be a drastic and monumental and revolutionary restructuring of how nursing homes provide care.” And that’s not what nursing home patients, or students, or even bar patrons, need from the government right now.