South Carolina Lawyers Weekly
By Kelli Sullivan
Over the last year, 27 states, and the District of Columbia and Puerto Rico have enacted some type of legislation granting full or limited immunity to various types of entities for claims that arise from COVID-19. Eight southern states, including North Carolina, Georgia, Tennessee, Mississippi, Alabama, Louisiana, Arkansas, and Kentucky have all enacted some form of limits on liability for COVID-19 claims.
South Carolina has not yet passed any legislation on this issue, but the House Judiciary Committee is currently debating S. 147, referred to as the “South Carolina Covid-19 Liability Immunity Act”. The bill, which would take effect upon the signature of the Governor, would cover certain types of claims and applies to all civil and administrative causes of action that arise between March 13, 2020 and June 30, 2021, or 180 days after the final state of emergency related to COVID-19 is lifted in South Carolina, whichever is longer.
Who is covered by the proposed legislation?
In its current form, the bill is quite comprehensive in the categories of individuals and businesses that are given liability protection. The bill would protect for-profit and not-for-profit business entities; any South Carolina government agency, entity, political subdivision, board, commission, county, or municipality; and any health care facility and provider, as is defined in Title 44, Chapter 4 of the South Carolina Code.
Generally speaking, health care facilities and providers include nursing homes—whether for-profit or not—hospitals, home health agencies, ambulatory surgery facilities, hospice facilities or services, hospitals, medical clinics, pharmacies, adult daycare centers, and laboratories. The bill also provides immunity protections to employees of the entities, including doctors, nurses (registered or non-registered), nurse practitioners, firefighters, EMTs, dentists and pharmacists.
What claims are covered?
Much like the determination of who is covered, the types of claims are broad as well. The legislation defines a “Coronavirus claim” as any claim or cause of action arising from an actual, alleged, or feared exposure to, or contraction of, coronavirus from the premises of a covered entity, from the operations, products, or services provided by the covered entity, or from the acts or omissions of a covered individual, including the delay or withholding of medical care for the treatment or diagnosis of the coronavirus.
For example, if a laboratory facility negligently processes a batch of coronavirus tests, and reports to 100 people that they are positive when they are not, the proposed legislation would shield the facility from claims by those who were told they were positive when in fact they were not. Likewise, the bill would shield a long-term care facility from claims that they were negligent in the care and treatment of their patients by failing to take proper steps to protect the patients from coronavirus.
Proof and exceptions
While the covered entities and types of claims are defined broadly, there are caveats and limits to the protections offered. First, in order to be entitled to the protections afforded by the statute the facility or entity must “reasonably adhere” to the public health guidance that was available at the time that the cause of action arose. This is likely to create some issues regarding what the public health guidance actually was at certain points in time, as the guidance changed several times over the course of the pandemic, and there were often conflicts between agencies as to the appropriate steps to take. There is further no definition of “reasonably adhere” in the statute.
There are also exceptions for conduct that is grossly negligent, willful, reckless, or intentional in nature, depending on the nature of the claim. If a plaintiff claims that the negligence arises from the operations, products, or services provided by a covered entity, or from the act or omission of a covered entity or employee, and can show by clear and convincing evidence that the conduct was grossly negligent, no immunity will accrue.
If a plaintiff claims that the negligence is related to off-label use of medications to combat the virus, the provision of services outside the professional’s scope of practice, or the use of equipment or supplies outside the normal use of the product, the plaintiff only need show by a preponderance of the evidence that the conduct was grossly negligent in order to evade the limits on liability.
Practical considerations
From a practical standpoint, while well intentioned, the bill may not offer as much relief as it appears. For example, there is no definition of what “reasonably adheres” means. In litigation, that would seem to be a question of fact, which is one that would be decided by a jury. If that is the case, then a nursing home, hospital, or other business entity would be unable to get a pretrial ruling that they had “reasonably adhered” to the prevailing health guidelines at the time.
Therefore, the business will still have to hire counsel, go through discovery, mediation, and potentially a trial to get a ruling that they took reasonable steps to comply. In practical terms, that is no different than a jury trying to decide if a physician or nursing home breached the standard of care, which is generally considered to be what a reasonable practitioner would do in the same or similar circumstances. By the time that a case has been prepared for trial, the vast majority of the expense to the defendant has already occurred.
Further, almost all complaints against health care entities include an allegation of gross negligence, recklessness, or willful conduct. Discovery must be taken, and facts developed for either side to prevail on the issue of gross negligence, and that ruling is often not made by the court until a directed verdict stage of trial. Once again, from a defense perspective, the majority of the expense of a case has already occurred by the time a case gets to a position in which the defense can ask for a ruling on gross negligence.
It is unlikely that this bill, even if passed, will substantially benefit those entities that it purports to protect from the risk and expense of litigation.
Kelli Sullivan is a shareholder at Turner Padget. Having been on all three sides of the litigation equation she brings a wealth of experience to her clients in the areas of insurance coverage, medical malpractice/licensing and nursing home defense. Kelli can be reached at [email protected] or (803)227-4321.
