Cleveland Medical Malpractice Attorneys
The Ohio legislature recently enacted a law that provides qualified immunity to businesses, health care workers and schools from civil liability for COVID 19-related illness, injury or wrongful death. The statute is poorly worded and overly broad. As with any ambiguous law, uncertainty prevails and litigation lies ahead.
The immunity is “qualified” in the sense that business, health and civic entities can be held liable if it is shown that the defendant was reckless. This is supposed to strike fear in plaintiff’s lawyers’ hearts because recklessness is, in legal terms, harder to prove then negligence. But jurors don’t know this and, frankly, most jurors require clear and convincing evidence of recklessness to hold a tortfeasor liable any ways, despite what the law says. The system is and always has been biased against victims of needless injury. The law also bans class actions absent reckless conduct. Reckless conduct is defined as “heedless indifference” to the consequences of Covid-19, or, in the healthcare setting, disregard of “substantial and unjustifiable risk that the health care provider’s conduct is likely to cause … an unreasonable risk” of injury or death.
This legislation is entirely unnecessary insofar as claims arising out of coronavirus transmission already face incredible obstacles. For example, there is no cure for the disease. Further, due to the Government’s haphazard response to this national emergency, and conflicting information from the healthcare industry and other businesses as the pandemic unfolded, there are no generally-accepted standards for precautionary measures or treatment guidelines. In most cases, it will be impossible to even prove where a given individual acquired their infection. Even in settings where transmission is rampant, like nursing homes or certain businesses (hospitals or meatpacking plants), the defendant will argue that the infection may have occurred due to transmission from outside of the facility, or by someone in the facility who was asymptomatic, or by unknown means like preexisting, code-compliant HVAC systems. Finally, in many cases, inadequate testing will deprive the aggrieved party of critical evidence to show that the death or bodily harm occurred as a result of coronavirus as opposed to some other, unrelated condition.
In addition to the above. Ohio’s anti-plaintiff Government already made it nearly impossible for workers to sue a negligent or even reckless employer. First, the Workers Compensation law bars employees from suing their employer when they are injured by their employer or a co-worker. The exception to this general rule is the so-called intentional tort. Previously, an employee could sue their employer when the employer showed conscious disregard for the employee’s safety. However, Ohio law was recently changed to allow claims for intentional torts only when an employer removes a safety guard that puts the employee in harm’s way. If the employer knowingly and intentionally exposes an employee to existing dangers, and the employee dies or suffers severe personal injuries, your Ohio Government has determined that the employer gets a pass.
Under this already-existing scenario, hospitals could force physicians, residents, nurses, therapists and allied workers to work without adequate personal protective equipment (PPE) with impunity. Likewise, Amazon, restaurants, retailers, warehouses, and meatpacking plants can continually expose their employees to this potentially deadly virus with inadequate PPE without facing any accountability. Workers desperate for a paycheck must soldier on, while the Jeff Bezos of the world heap more billions onto their already grossly over-sized pile.
While this immunity legislation is clearly unnecessary, it carries with it two strikingly awful precedents. First, the immunity is a slippery slope. Once one party gets immunity, some other well-heeled special interest will claim that it needs it. The Government runs on corruption, money and influence, so it won’t be long before injured parties have no rights if immunity can be had by negligent actors. Second, the immunity law is retroactive, meaning that it is applicable to claims arising as far back as March 9, 2020. Retroactive laws are clearly unconstitutional under Ohio law. Likewise, the constitution forbids laws that impact wrongful death claims. But that did not stop the corpulent, special interest-fed Ohio legislature and Governor from enacting a retroactive law. There is little hope that the Ohio Supreme Court, which is subject to the same corrupting influences, will strike the law down. The gradual erosion of rights occurs silently in this State, on the backs of injured workers, muffled by big donations from anonymous donors.
Many questions are left open to future litigation. Will the Supreme Court of Ohio abide by its constitutional duty and strike this clearly unconstitutional and overreaching law down? In existing cases that have been the subject of court rulings, will the law of the case doctrine control? Can Ohio jurors hold reckless hospital systems accountable when poor care is provided and severe personal injury and wrongful death results?
The Cleveland medical malpractice attorneys at Mishkind Kulwicki Law Co., L.P.A. are available for a free consultation if you have questions about injuries or death of a loved one as a result of a medical error.
