Wrongful Death Lawyers
Wrongful death claims arising out of COVID-19 or coronavirus infections pose new questions for wrongful death lawyers, personal injury lawyers and workplace injury lawyers. However, some general legal principles apply.
Generally, any injury that occurs in the course of employment is covered by Ohio’s workers’ compensation laws. The workers’ compensation law bars a claim by an employee against his or her employer or coworker for injuries that occur on the job or in the course and scope of employment. An exception to this general rule is the so-called “workplace intentional tort.” Workplace intentional torts used to arise under Ohio law anytime an employer violated specific safety regulations or industry standards thereby placing their employee into a position where they were substantially likely to sustain injury. Such recklessness or conscious disregard of the worker’s safety at work gave rise to an intentional tort claim that subjected the employer to both compensatory damages and punitive damages. However, the Ohio legislature, catering to special interests like big business and the insurance industry, drastically reduced the circumstances where an intentional tort claim can be brought. Currently, an intentional tort claim can be brought only in two limited circumstances: when an employer deliberately removes an “equipment safety guard” or deliberately misrepresents a toxic or hazardous substance.
Using the foregoing definition, an intentional tort claim may arise under certain circumstances. Unfortunately, neither removing an equipment safety guard or misrepresenting a hazardous substance is defined with any greater specificity. Arguably, a violation of infection control measures contained in a company policy or hospital policies and procedures that includes removal of personal protective equipment (PPE) could meet the definition of removing an equipment safety guard. Likewise, an employer’s representation that its infection control measures make the workplace safe could qualify as misrepresentation about a hazardous substance. Does an employer implicitly represent that workplace is safe without making a formal representation? Is it enough that the employer published a Covid-19 policy designed to reduce the risk of infection without explicitly stating that policy would not prevent all infections? Because these are issues are new, posing legal gray areas, they will inevitably be litigated over the next several years.
One common example, in the healthcare setting, will be where a doctor or nurse is subjected to patients with Coronavirus and deprived of personal protective equipment (PPE) and/or informed that patient care was safe using subpar or no protective equipment. When a hospital worker employed by a hospital system dies under these circumstances, a valid wrongful death claim might exist under Ohio’s intentional tort laws. This issue will surely be litigated as more and more hospital employees succumb to this fatal illness. Similar cases have already been filed in other States, though State laws vary.
Outside of the healthcare setting, it will be very difficult for workers to prove that they became ill due to a workplace exposure, unless there was an outbreak of cases at their workplace and testing was done to confirm the presence of coronavirus. Like any case, “the devil is in the detail,” and case-specific facts must be reviewed carefully and in detail. If you have any questions about a loved one who died as a result of complications of the Coronavirus and you would like to explore your legal options, please give us a call. We will be glad to assist you.
Potential workers who may have been intentionally exposed without adequate protection include the following:
- Doctors, nurses, respiratory therapists, EMTs, and paramedics
- Nonmedical hospital employees, such as engineering, maintenance and cafeteria workers
- Grocery store, convenience store, and gas station clerks
- Stockers
- Delivery drivers
- Meatpacking employees
- Police and fire department personnel
- Pilots and flight attendants
- Public transportation workers, including bus drivers
These workplace intentional tort claims will face an additional obstacle in terms of proving that the worker became infected in the workplace. An epidemiologist may be required to prove that the worker likely became infected at work where the infection is prevalent, as opposed to their home, the gas station or grocery store, where they may have visited before or after work. A case will be weaker if the deceased did not faithfully engage in social distancing and other protective measures outside of the workplace. The burden of proof in Ohio is by a preponderance of evidence, meaning that the plaintiff will have to prove that it is “more likely than not” that they became infected in the workplace. So, in addition to proof of workplace exposures, the plaintiff will need to rule out other potential sources of exposure. Argument that the deceased became infected outside the workplace is purely speculative unless a defense attorney can prove that the worker was in contact with someone who tested positive for Coronavirus.
Significant damages must exist before a workplace intentional tort lawsuit can be brought. If an individual contracts COVID-19 and has a full and complete recovery, it would not be economically viable to pursue a claim. The law pertaining to these cases is so uncertain that lawsuits involving coronavirus will inevitably result in protracted and expensive litigation. A wrongful death lawyer cannot undertake representation if the only injury is an uncomplicated illness followed by a full recovery. The damages threshold for investigating a coronavirus-related claim will certainly include wrongful death claims. Short of wrongful death, there must be some permanent catastrophic injury. There have been reports of strokes and severe heart damage related to coronavirus infections. These are significant damages that warrant investigation. There may be other scenarios involving severe personal injuries that are sufficient to warrant the time and expense associated with a workplace intentional tort.
In addition to proving the likely source of infection occurred in the workplace, a plaintiff will also have to prove that the cause of death was from Covid-19. This should be apparent from hospital records and the death certificate. However, a positive culture will help prove cause of death. Symptoms of coronavirus are non-specific and overlap the symptoms of other respiratory infections like community-acquired pneumonia (CAP). The fewer issues that muddy the waters, the stronger the case and more likely to avoid dismissal.
If you lost a loved one to coronavirus and the deceased was an essential worker, facing daily risk of exposure, we are here to help. Please call Mishkind Kulwicki Law Firm today for a free consultation.
