CHARLESTON – State lawmakers and others are discussing legislation to provide some sort of immunity to health care providers, businesses and others who have remained open during the Coronavirus pandemic.
Those working on the legislation say it is needed to avoid lawsuit abuse “that will only further punish already hurting businesses and our local economy.”
A group for trial attorneys, however, say the legislation is politically motivated and unnecessary.
Whiteaker
Jordan Burgess, executive director of West Virginia Citizens Against Lawsuit Abuse said his statewide tort reform group has been working with job providers, health care leaders and state policy makers on the legislation to “protect employers who have stayed open during the pandemic and provided essential supplies, food and other necessary items to West Virginians during these trying times.”
“The legislation will protect health care providers and allow them to make the best decisions to keep people safe and healthy without fear of unnecessary lawsuits,” Burgess said. “The legislation will provide protection to companies that manufacture products that have helped with our overall COVID-19 response.
“The legislation will not only cover this COVID-19 response, but future emergency situations.”
Several states already have passed similar legislation, including Kentucky, New York and Wisconsin.
And while there apparently haven't been any such cases filed yet in West Virginia, state Senate President Mitch Carmichael said lawmakers recognize the need for some type of tort reform because of the pandemic.
“Yes, we are working on it, and it is under consideration already,” Carmichael told The West Virginia Record. “And we are going to be very vigilant about it to help protect businesses, citizens and health care providers who are doing what they can to help during this pandemic.
“We don’t want them to be opened up to meaningless lawsuits filed by litigation-loving plaintiffs attorneys.”
While he mentioned hospitals, nursing homes and grocers as obvious businesses that could face possible litigation, Carmichael (R-Jackson) used Toyota Manufacturing as another example.
“To their great credit, Toyota put in place opportunities to craft N95 masks to provide to people on the front lines,” Carmichael said. “And that’s great. It clearly isn’t their primary business though. We want to provide protections for those who are trying their best to provide for the public health.
“It’s a great public service. But could they be open for lawsuits because of that? We want to do something to help that situation.”
As for the essential businesses that have remained open to help residents, Carmichael says they’ll need help as well.
“If these businesses remain open and viable to serve the public’s needs and they did everything they’re supposed to have done by taking the recommended precautions, they need protection from possible lawsuits.”
Carmichael said he envisions any possible legislation wouldn’t identify specific businesses or even specific industries for these protections.
“It would be a broader statement,” he said. “If an entity followed the rules it was given, they need to know they aren’t going to be open to a bunch of lawsuits if it, for example, became a hot spot with the virus.
“Just imagine if you own a factory or a shop, and you keep it open to accommodate the response to all of this. You’re doing everything you can to be safe and to help, then some trial lawyer tries to ring you up.”
Carmichael said he and other state officials don’t want to rush things, but he said leaders have to start thinking about how to make the transition from only being cautious about public health to also trying to protect the state’s financial situation.
While he doesn’t know when the state should start allowing certain businesses to reopen, he said he is sure it will be done as soon as it’s prudent to do so.
“You also have to consider so many other things, such as looking at the flexibility the state has in allocating these federal funds it has received,” Carmichael said. “It’s a lot of work, and we’re still trying to flesh those things out.”
The president of the West Virginia Chamber of Commerce said he also supports legislation to clarify that the Coronavirus is not an open invitation for lawsuits.
“There will be those who are tempted to want to sue somebody, whether it’s a rural hospital, a large hospital corporation, a doctor, a nurse, another healthcare worker, an ambulance driver,” Steve Roberts told The Record. “Anybody they think they can put some blame on. It’s a major concern for us. We do think some reasonable protections are needed that would be accepted by everyone.
“This one (virus) came on us fast, and we’re still earning a lot about it. But historically, a crisis has led to lawsuits. This is one where we want to be able to help these essential businesses not have to worry about a lawsuit when it’s over, especially the health care providers that just need to be able to take care of sick people.”
Roberts said such crises usually mean some lawyers go after “anybody who has deep pockets.”
“And that usually means businesses,” he said. “This is something we think definitely needs to be addressed. In many cases, it’s grocery stores or other businesses that have had to stay open that will be targets.
“But, we have to be reasonable about all of it. We want to be open to the idea that, in many cases, people and businesses were just trying to do the right thing.”
The West Virginia Association for Justice, a statewide group for trial attorneys, says the idea isn’t reasonable at all.
“Shame on West Virginia CALA and the billion-dollar special interests funding them for using the COVID-19 crisis to advance their political agenda,” WVAJ President Kristina Thomas Whiteaker told The Record. “It’s as bad as the scammers who are using the emergency to price gouge consumers or sell fake ‘cures.’ It’s a new low even for them.”
Whiteaker said “CALA is offering a so-called ‘solution’ to a problem that doesn’t exist.”
“Measures are already in place to prevent cases without merit,” she said. “CALA and its funders know that, but their real goal is total immunity.
“They don’t want to be held accountable when they hurt consumers, workers and small businesses. They want to block your access to the courts and your constitutional right to trial by jury.”
Whiteaker said West Virginians are working together to address the challenges of this pandemic.
“During this time of unity and common purpose, it is reprehensible for CALA to prey on people’s fears,” she said. “CALA is using a crisis where thousands of Americans have died and West Virginians are struggling to feed their families to advance a political agenda. It’s wrong.”
