Empower Wisconsin | May 22, 2020
By Corydon Fish, Wisconsin Manufacturers & Commerce
MADISON — In the face of a crisis, the Wisconsin Legislature and Gov. Tony Evers took bipartisan action to protect health care workers who have voluntarily placed themselves on the frontlines of the COVID-19 pandemic. While the rest of the business community rallied together to protect those who protect us, trial lawyers lambasted the reforms as “repugnant,” stating they will make patients “less safe.” These claims from plaintiff attorneys are misleading and counterproductive to health care providers’ vital efforts to combat this unprecedented state of emergency.
Trial lawyers argue the liability protections in Wisconsin’s bipartisan legislation are unreasonable and provide “total immunity,” but the statutory text shows this is not the case. The safe harbor provision created in 2019 Wisconsin Act 185 is narrowly tailored to protect health care professionals and providers from frivolous litigation during a state of emergency. Health care professionals and providers are only protected from liability for acts or omissions made in good faith and consistent with guidance from federal or state public officials and health authorities during a finite period of emergency declared by the governor to combat COVID-19.
The legislation specifically states that health care providers are NOT immune from liability for reckless or wanton conduct or intentional misconduct, so – despite trial lawyers’ claims– patients are no “less safe” under the new law. Instead, patients are still protected from misconduct by providers and providers are protected from trial attorneys filing frivolous lawsuits and seeking payouts.
This safe harbor provision is reasonable and in line with actions taken by other states across the political spectrum. Democratic governors in New York, Illinois and Michigan through executive order created broad immunity for health care workers providing medical services in response to the COVID-19 pandemic (provided the workers were not grossly negligent, similar to the Wisconsin legislation). In Kentucky, the Republican-led Legislature passed and the Democratic governor signed a new defense against civil liability for injuries resulting from any act or omission by a health care provider treating a COVID-19 patient. Wisconsin’s language was modeled after these bipartisan provisions.
Wisconsin trial attorneys and their lobbyists pushing back against civil justice reform is nothing new in Wisconsin. However, opposing reasonable measures aligned with other states that protect health care workers on the front line of the fight against a global pandemic, and attempting to profit off that pandemic, may be a new low. Scaring the loved ones of patients in hospitals and residents in retirement communities by stating that their family members are “less safe” because it is harder for attorneys to make a buck off of suing nurses and doctors simply is not grounded in fact. Trial lawyers are already spending significant amounts on advertising to recruit COVID-19 plaintiffs.
Beyond the protections for health care workers and providers, Act 185 also created a narrow exemption from civil liability for manufacturers, sellers and distributors of emergency medical supplies. This provision is limited in two ways. First, it is limited to those entities that manufacture, distribute, or sell any medical equipment or supplies necessary to limit the spread of, or provide treatment for, COVID-19. Second, those entities must provide the supplies at cost or donate them.
These provisions are a great start to protect businesses and workers operating during extraordinary times from frivolous litigation related to COVID-19 as they reopen. But more work needs to be done to protect businesses – many already financially stretched to the brink – from potentially bankruptcy-causing litigation. This work can include adopting reasonable COVID-19 liability reforms including protection from plaintiffs alleging to have contracted COVID-19 at a specific business, protection for individuals rendering aid or support to those suffering from COVID-19, and expanded protections for manufacturers, sellers, and distributers of necessary medical supplies.
These types of provisions are not only good policy but have the strong support of the public. According to a recent US Chamber of Commerce – Institute for Legal Reform poll, 84-percent of respondents believe that essential businesses, and 82-percent of respondents believe that all businesses, should be protected from lawsuits related to the coronavirus.
The Wisconsin Legislature should follow the lead of the Trump administration and United States Senate and act quickly to protect job creators from a flood of frivolous coronavirus lawsuits that is sure to come as Wisconsin reopens for business.
To contact your lawmakers, please visit www.wmc.org/lawsuitreform.
Corydon Fish is the General Counsel for Wisconsin Manufacturers & Commerce, Wisconsin’s chamber of commerce and manufacturers association.