Placebo Effect: How Illinois’ COVID Tort Immunity Fails to Immunize Medical Professionals and the Healthcare Industry

At a time when COVID-19 vaccinations are on the rise and there is renewed focus on reopening the state, Illinois’ attempt to immunize its medical professionals and healthcare industry from COVID-19 related civil liability ironically may be failing. Over the last fifteen months, medical professionals have strived tirelessly to provide care to their patients while protecting them from the unprecedented circumstances created by a novel and deadly virus. Recognizing the risks faced by medical professionals, many states implemented immunity provisions to protect healthcare workers from civil liability, with the goal of ensuring that medical professionals and their facilities could not be sued based upon a hindsight argument. In Illinois, Governor J.B. Pritzker provided civil immunity for medical professionals and facilities as part of his Executive Order 2020-19 dated April 1, 2020. The order states that medical professionals and facilities “shall be immune from civil liability for any injury or death alleged to have been caused by any act or omission” of the care provider or facility in “rendering assistance” to the State in its efforts to prevent the spread of COVID-19.[1] The Executive Order discusses various ways in which facilities can “render assistance” to the state and provides an immunity exemption for injuries caused by willful and wanton conduct. The immunity provision appears to be a direct and unequivocal limit on medical professional liability; however, Illinois plaintiffs’ attorneys have already begun to chip away at the meaning of the executive order, transitioning it from an immunity provision to just another tool to attack medical professionals through a reasonable cause analysis. More »

Canela V. Sky Chefs – How To Make A Light Duty Offer

by

On April 8, 2021, New York’s Appellate Division, Third Department, rendered a decision in Canela v. Sky Chefs. This decision sheds light on the issue of labor market attachment and on the importance of a well written light duty offer letter. More »

If at First You Do Not Succeed, Try Again Immediately: Illinois Passes Revised Pre-Judgment Interest Statute

Defendants welcomed the news that Illinois Governor J.B. Pritzker vetoed HB3360 which established 9% pre-judgment interest that began accruing as early as the date of a personal injury. Pritzker was critical of the bill as placing too large a financial burden on hospitals, acting as a deterrent to doctors practicing in the state, and the 9% interest rate being out of line with current rates. However, at nearly the exact time the Governor was vetoing that bill, both Chambers of the Illinois Legislature were passing SB72, a revised version of vetoed bill. The Governor has signaled he will sign this version of the bill. More »

Green Development Risks

by

The emerging market of sustainable, or “green,” construction is attractive to buyers and developers as both a means of conservation and an effective marketing tool. Many buyers, contractors, and subcontractors are now attempting to enact green construction projects through various certification processes, which substantiate a structure as “green”. The LEED (“Leadership in Energy and Environmental Design”) certification, for example, is an internationally recognized verification that a development was designed and built using strategies aimed at improving performance in energy savings, water efficiency, CO2 emissions reduction, and indoor environmental quality. No matter what the primary focus of a green construction project may be, this relatively new frontier in the industry creates both unique economic opportunities and legal risks that contractors and subcontractors must not overlook when taking on sustainable business ventures. These opportunities and risks are ultimately tied to the methods and material of construction, and the contractual relationship between the developer and contractors. More »

A Question of Timing: Policy-Limit Demands and Insurer Bad Faith in Florida

by

Navigating the often-turbulent waters of the Florida insurance marketplace can be challenging for liability carriers, who frequently find themselves having to respond very quickly to what may appear to be unreasonable policy-limit demands made by counsel for claimants. These timed demands typically have three things in common, all of which can understandably be problematic for insurers:

  • they come very quickly after an underlying claim has first arisen,
  • they are frequently made well before the carrier has been able to adequately investigate the facts and circumstances of the underlying claim or to verify the injuries and medical condition of the claimant, and
  • they all too often provide a very short deadline for acceptance--combined with (not-so-veiled) threats of insurer bad faith should the carrier not immediately tender its limits within the arbitrary deadline set by counsel. 
More »

CUBI: Everything You Need to Know About Texas' Biometric Law and Beyond...

As companies continue to take advantage of developing technologies involving the use of biometric information, it is crucial that businesses and legal practitioners alike stay informed of the legal and compliance concerns associated with the use of such information. For instance, companies conducting business in Texas should be aware of Capture of Use of Biometric Identifiers Act (“CUBI”) (Tex. Bus. & Com. Code §503.001). Passed in 2009, CUBI regulates biometric identifiers that are used for a “commercial purpose.” While “commercial purpose” is not itself defined by CUBI and Texas courts have yet to meaningfully interpret that phrase, Texas courts have construed the term “commercial purpose” broadly, in other contexts when no definition is available (see e.g., Texas’ Product Liability Act, Tex. Bus. & Com. Code §503.001, et al.).  CUBI related concerns have created a buzz around employers’ use of kiosks and other devices for contact-tracing and other reasons, as practitioners believe that any collection of biometric identifiers for this purpose will likely fall within CUBI’s restrictions.  Importantly, while CUBI does not itself authorize a private cause of action, the Texas Attorney General is empowered to pursue violators who are subject to a penalty of up to $25,000 per violation. More »

Prejudgment Interest Starting as Early as the Time of Injury? At a Rate of 9% Interest? A Bill Sits on Illinois’ Governor’s Desk.

by

Personal injury plaintiffs in Illinois could soon be awarded pre-judgment interest at a rate of 9% per annum starting as early as the date of alleged injury if a bill passed by the Illinois Legislature is signed in to law. 

The bill, formally titled Amendment to House Bill 3360, states that “[p]rejudgment interest shall begin to accrue on the date the defendant has notice of the injury from the incident itself or a written notice.” It goes on to propose that the judgment shall be “calculated at the rate of 9% per annum.” The proposed law applies to any “damages for personal injury or wrongful death…whether by negligence, willful and wanton misconduct, intentional conduct, or strict liability” of any defendant, other than municipalities. More »

Now That Vaccine Distribution Has Begun, What Issues Do Employers Face?

by

Over the course of 2020, American employers have been diligently working to navigate through many workplace issues caused by COVID-19. With the pandemic’s end finally in sight thanks to the recent FDA approval of the Pfizer and ModernaCOVID-19 vaccines, those same employers now must start preparing for critical questions that come with the availability of a vaccine.

Can Employers Require Employee Vaccination?

Generally, private employers can mandate employee vaccination for the benefit of the business, other employees, or customers.[1] A private employer may have a duty to require vaccinations depending upon several factors, including employee/customer interaction, vulnerability of employees and customers, and the workplace environment. More »

Immunity From Liability For Healthcare Facilities and Healthcare Professionals in the Continuing Battle Against the Covid-19 Pandemic

by

Since the beginning of the COVID-19 pandemic in March 2020, local, state and federal authorities have sought out ways to address the many issues presented by the pandemic. One such issue is how to address the legal issues facing healthcare workers, who place themselves at risk of contracting the disease every day, and whether these workers and medical facilities should be shielded from criminal or civil liability based on difficult treatment decisions.

As the number of COVID-19 patients continues to rise in the US and worldwide, hospitals and doctors are faced with the decision of how to allocate scarce resources, such as ICU beds, ventilators, and time spent by staff treating an individual patient. An example of one such allocation decision is whether a healthcare worker should administer CPR for a patient who is crashing. More »

A National Approach to Biometric Privacy

In August, Senators Bernie Sanders (I-VT.) and Jeff Merkley (D-OR.) introduced the National Biometric Information Privacy Act of 2020 (NBIPA), which serves to regulate the collection, retention, disclosure and destruction of biometric information. While NBIPA is awaiting Congressional consideration, its potential effects and nationwide extension make it noteworthy.

As currently drafted, NBIPA limits the collection of personal information to valid business purposes, prohibits the inclusion of written releases in employment contracts, and builds on the Illinois Biometric Information Privacy Act in two major ways. First, NBIPA requires all businesses, regardless of size, to obtain consumers’ opt-in consent before collecting, sharing or using their biometric data, inform consumers of the use and length of term of biometric data, develop and publish a data retention schedule and guidelines for destroying biometric data, and obligates businesses to store, transmit, and protect biometric data in the same or in a more stringent manner as is done for other confidential and sensitive information. Second, NBIPA not only creates enforcement by state attorneys but also creates a private right of action for individuals even if the injury is only a technical violation that does not result in actual damages.[1] More »

Get Updates By Email

Blog Contributors