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Effect of new COVID liability law remains uncertain

A sign warning of COVID-19 dangers remains in place outside the entryway of a state office building June 15 in Jefferson City. Associated Press file photo by David A. Lieb

A sign warning of COVID-19 dangers remains in place outside the entryway of a state office building June 15 in Jefferson City. Associated Press file photo by David A. Lieb

Missouri attorneys representing defendants and plaintiffs agree that there have been few lawsuits alleging that a party is liable for injury due to COVID-19.

But they remain divided on the need for a new law to protect businesses, healthcare providers and houses of worship from COVID liability.

Attorneys who could represent plaintiffs in lawsuits against those entities argue that the law approved by Gov. Mike Parson last month was misguided because a federal law already provided some immunity against COVID-19 lawsuits. They also oppose the state law, which takes effect Aug. 28, because they say it contains broad language that could protect parties against lawsuits concerning negligence unrelated to COVID.

“It can cover any medical malpractice claim where healthcare services are impacted by COVID, and I can see that potentially being a problem in the future, specifically cases that are filed that have absolutely nothing to do with COVID but for the fact that the negligence occurred in a hospital or medical provider’s office during the time of COVID,” said Amy Gunn, a personal injury attorney with The Simon Law Firm in St. Louis. “I think there is potential for abuse.”

Attorneys who would represent defendants in COVID lawsuits argue that even with a dearth of such lawsuits, the law helps businesses and other groups that have struggled to stay open and keep their employees safe during the pandemic. 

“I don’t think there was a real big threat even before this law was proposed, but at the same time, it was such a state of uncertainty that if there is one less thing to have to worry about and to consider, then it provided more peace of mind,” said David Renovitch, an attorney with Rynearson, Suess, Schnurbusch & Champion in St. Louis who defends insurance companies in lawsuits. 

Missouri is one of 30 states to pass COVID-19 shield laws, according to Bloomberg.

When the pandemic began in March 2020, some groups predicted that there would be a wave of lawsuits. The U.S. Chamber of Commerce warned that liability for exposure to the virus was “perhaps the largest area of concern for the overall business community.”

But those concerns thus far appear to have been overblown. There have been about 11,000 complaints filed concerning COVID in the United States, according to a database maintained by the law firm Hunton Andrews Kurth, which is a relatively small number, attorneys say. In Missouri, there have been only 145 claims. 

With “the standards that are already in place, to prove a business was negligent for something like [COVID] exposure would be a hard thing to do,” said Andrea McNairy, a personal injury attorney at Brown & Crouppen in St. Louis who has received very few calls concerning COVID.

But she and other Missouri attorneys are concerned that defendants are using the federal Public Readiness and Emergency Preparedness (PREP) Act, which provides immunity for tort liability claims during a public health emergency, to shield themselves from lawsuits unrelated to COVID and that Missouri law could make it even easier for attorneys to claim such a defense. 

In January, a woman in Franklin County filed a medical malpractice lawsuit against a surgeon who allegedly operated on the wrong side of her spine. Dr. Fangxiang Chen and his employer claimed they were immune from liability because of the PREP Act. The case is ongoing.

“I think anytime someone gets statutory immunity for negligence, it’s a slippery slope. Today it’s this; what’s it going to be tomorrow? I am concerned because unfortunately I think we have a lot more COVID to go,” said Gunn. The personal injury attorney added that she is not taking any COVID cases because it’s hard to prove causation. 

Lowell Pearson, a managing partner with Husch Blackwell in St. Louis, disagrees that the law could affect medical malpractice cases unrelated to COVID.

“I don’t see this by intent or by effect to be a broad, wide-scale change in medical malpractice law,” said Pearson, who filed a lawsuit against the state over its refusal to expand its Medicaid program. “I think this was pretty narrowly tailored to this pandemic and similar virus-type situations that might occur.”