In Defense of Long-Term Care Facilities: Immunity, and What to do if There is Not Any

COVID-19 cast the entirety of the healthcare system into uncertainty. This is acutely evident in the long-term care setting, where per capita fatality rates remain high. The reasons? (1) The elderly and those with underlying health conditions are most susceptible to severe illness from COVID-19; and (2) those in close quarters, unable or unwilling, to observe social distance parameters, are also at increased risk. When you combine those two risk factors in one setting, this explains the reason that long-term care facilities were, and continue to be, hard hit by COVID-19.  More »

Changes to Punitive Damages Coming to Missouri

Last week, the Missouri legislature passed comprehensive changes to the assessment of punitive damages in Missouri. The bill, SB 591, outlines new pleading requirements, a clear burden of proof, and a heightened standard with regard to punitive damages. The bill will now head to the desk of Governor Mike Parson, who is expected to sign these new measures into law. More »

Retro-Fitting Reservations: The Re-Opening of Restaurants Amidst the COVID-19 Crisis

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The restaurant business, a staple of American life. Eating out offers the opportunity to skip the cooking, be waited on and enjoy a variety of foods you would not otherwise prepare at home. Restaurants also provide the venue for those special occasions with friends and family - birthdays, anniversaries, graduations, and other memorable events. The establishments providing these services are known not just for their food, but for their ambiance, entertainment and social value. However, as the COVID-19 Coronavirus began impacting the United States, governments of the various states immediately took action to stem the spread of the virus. First and foremost, social distancing measures were implemented to ensure that individuals maintained a "safe and healthy distance" from one another - this required restaurants to immediately close their doors to the public. During the pandemic, restaurants began to adapt and allowed patrons to purchase food "to go", albeit via delivery or pick-up, but pick-up mostly required people to remain outside while employees, donned in surgical masks and gloves, brought the food to your car. Where does this leave us now? As the various states begin to "re-open," will restaurants return to what we consider "normal" or will the dynamic of the restaurant industry change in an effort to keep its employees and customers safe, and prevent liability for the unintentional transmission of COVID-19 or any other disease? After all, eating is one activity that cannot be accomplished whilst wearing a mask. More »

Florida's Religious Re-Opening: Guidance For Faith Based Institutions To Mitigate Liability In Epidemic/Pandemic Events

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The worldwide COVID-19 pandemic has adversely affected the daily lives of Floridians in every capacity - from socialization to merely shopping for groceries. However, one of the most salient affects has been on the ability of Floridians to gather for religious purpose and prayer. Mass gatherings of any kind were limited or prohibited throughout Florida and the ability to physically gather for religious purposes was hindered dramatically. As Florida begins to systematically re-open places of gathering (i.e. parks, boat ramps, recreational facilities) on a piecemeal basis, religious institutions are beginning to plan for their re-openings as well. Part and parcel of this planning is the need to mitigate liability should a congregant, employee or other individual contract the virus whilst inside the premises of a religious institution. This note focuses on the standard of care utilized in Florida, and the methodologies a religious institution may utilize to meet and exceed that standard of care necessary in order to raise a viable defense to any claim alleging negligence or liability on the part of the religious institution. More »

The Future of E-Cigarette Litigation: Is There One?

I. Introduction

While e-cigarette smoking, or vaping, as an alternative to smoking traditional cigarettes is generally regarded as a healthier option, some claim that the long-term effects of vaping are unknown and that inevitably researchers (and habitual vapers) will learn that e-cigarettes have their own risks and hazards. Plaintiffs’ attorneys seem to see tort litigation over e-cigarettes as a “when” and not an “if”. Thus far, the lawsuits against e-cigarette manufacturers have primarily been filed by governments and center on consumer fraud allegations and the manufacturer’s advertising techniques, particularly alleging that young people are the targets of the advertising. Other lawsuits have revolved around specific defective products, as some e-cigarettes catch fire or explode due to a malfunctioning battery, or inadequate safety controls or warnings, as children are poisoned from accidentally ingesting e-liquids.[1] What the lawsuits have yet to allege is that e-cigarette smoking caused a specific plaintiff to develop an illness, and certainly e-cigarette litigation has not yet developed into the latest mass tort. This article will review the various risks that are being evaluated with respect to e-cigarette smoking and whether the science is moving in a direction where e-cigarette mass tort litigation is inevitable. More »

Re-Opening States and Businesses and the Role OSHA May Play

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As a handful of states declare their intentions to lift stay-at-home orders and allow some or all businesses to re-open, the federal government has largely taken a hands-off approach, citing federalism and a deference to governors who better understand the threat of COVID-19 in their respective states. While President Trump and his medical experts have warned that re-opening for business is ill-advised, some states seem determined to ignore the warnings and do just that.  Yet, even if states allow businesses to re-open, state government lacks the power of course to force individual businesses to open, employees to go to work or the public to patronize open businesses. These are all difficult personal decisions, balancing economic needs and the perceived threat to one’s personal health and the health of others. One factor that has not received much attention but that could impact the economic component of the equation, not to mention the role of the federal government in state and business owner decisions, is the potential for OSHA to get involved if it feels that employers who elect to conduct business are failing to adequately protect employees. The idea is hardly far-fetched, as OSHA has already published influenza pandemic guidelines. This article will review those guidelines, how they could be modified to apply to the COVID-19 pandemic and the potential impact OSHA might have on business owner decisions whether to re-open for business during an ongoing pandemic.  More »

COVID-19 Pandemic Negligence Claims Update: Developing Legal Immunity for Health Care Professionals

I. Introduction

On March 27, 2020, the bipartisan federal Coronavirus Aid, Relief, and Economic Security (“CARES”) Act was enacted with the goal of providing economic aid to families, businesses, health care providers, and state governments. While the Act received a wealth of media attention relative to its much-needed economic stimulus, little publicity was given to the immunity it grants to volunteer health care providers during the current public health crisis. Earlier in March, we discussed the impact of the COVID-19 Pandemic on Negligence Claims, noting the potential for rapid development of legal immunity in the face of uncertainty created by Coronavirus. Now, just two months into the COVID-19 pandemic, federal and state governments have begun to take action to protect their health care providers from liability, and we summarize these early efforts below. More »

Michigan Governor Signs Executive Order Cutting Red Tape for Motor Carriers During the COVID-19 Pandemic

Michigan Governor Gretchen Whitmer signed an Executive Order on April 8, 2020, related to the COVID-19 (or “coronavirus”) pandemic to relax transportation regulations. The Order provides that certain requirements administered by the Department of Transportation (“DOT”) are temporarily suspended and must not be enforced for motor carriers providing “critical assistance related to the COVID-19 pandemic during the declared states of emergency and disaster.” This includes: More »

Will Drug and Medical Device Manufacturers Combating COVID-19 be Subject to Tort Liability?

In an effort to combat the COVID-19 pandemic President Donald Trump has invoked the Defense Production Act (“DPA”), specifically ordering General Motors (“GM”) to manufacture ventilators. Of course, GM does not normally produce ventilators. Just this week the President, threatening to invoke the DPA, reached an agreement with 3M Company as to where and to whom it would deliver its protective face masks. As the number of diagnosed cases and deaths increase in the United States, it is likely that other companies will be under executive orders to produce products outside their areas of expertise. The DPA is a powerful law that was written in the spirit of the industrial mobilization that the United States implemented during World War II and could very well help to carry us through this pandemic. But what will happen if one of GM’s ventilators contains a manufacturing defect? What if a drug or medical device company under executive orders produces a product that harms a patient, medical treater, or someone else? Can those companies be subject to liability? The answer lies in the interplay between the DPA and the Public Readiness and Emergency Preparedness (“PREP”) Act. More »

Malpractice Mitigation: Utilizing Professional Standards as a Defense to Claims of Negligence in Epidemic/Pandemic Events

Since the start of the COVID-19 pandemic, there has been one constant--uncertainty. What we think we know is in a state of flux as we gain more and more first-hand knowledge of how the virus operates. This, understandably, leads to confusion in which our understanding of how to stay healthy and safe remains somewhat illusive, for both medical professionals and laypeople alike. There is a daily sea of information and sound bites provided by the media, elected officials, and local and national health professionals; information that is sometimes contradictory. Medical professionals must wade through information daily in order to improve upon the practice and treatment of their ill patients. This begs an important question: What does it mean to the medical professional providing critically-needed medical services when the typical best practice "rules," protocols and standards simply do not fully exist yet due to the "novel" nature of COVID-19?

            While the potential for liability exists for all physicians on a day-to-day basis, this potential increases exponentially with the onset of an epidemic, pandemic or the occurrence of a disaster, whether natural or manmade and even more so when that pandemic involves a new and novel pathogen. For the purposes of this article, the authors focus exclusively on the potential liability borne by physicians and other medical professionals during those times in which their patients are exposed to and/or infected by a disease due to an epidemic/pandemic event such as the present novel COVID-19 crisis. More »

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