Hospitals are warning they will be slow to restart elective procedures like knee surgeries and colonoscopies without assurances from Congress they won’t get sued by patients and their own workers if they are infected by the coronavirus during those visits.
Powerful industry lobbies like the American Hospital Association pressing for relief in the next rescue package have gained a sympathetic ear from Republican leaders in Congress. They’ll be joining with a raft of other industries seeking legal protections, ranging from manufacturers to casinos, while facing opposition from Democrats concerned about stripping patients’ legal rights.
The dispute echoes past fights over tort reform and medical malpractice suits that pitted trial lawyers, unions and consumer groups aligned with Democrats against doctors and other health providers claiming they were swamped by frivolous lawsuits.
But the pandemic and the staggering job losses it’s spawned have made shielding businesses from liability claims a far thornier issue, with hundreds of lawsuits already challenging how businesses and governments responded to the coronavirus emergency. The Senate Judiciary Committee will hold a Tuesday hearing on the issue amid a frenzy of lobbying from labor groups, insurers, retailers, airlines and other industries that have stayed open during the pandemic.
The issue of liability protections has been a major sticking point in crafting another trillion-dollar-plus coronavirus relief bill aimed primarily at buoying devastated state and local budgets. Senate Majority Leader Mitch McConnell and House Minority Leader Kevin McCarthy have called legal protections for employers “absolutely essential” to striking a deal, arguing that excessive lawsuits could blunt efforts to reopen.
“We simply cannot allow a flood of frivolous lawsuits to harm our incredible health care workers or stunt our economic recovery,” said Sen. John Cornyn (R-Texas) from the Senate floor Monday.
Some hospitals say the legal uncertainty is making them wary to resume elective procedures — an expansive category includes non-lifesaving surgeries, as well as care for heart conditions and cancer. The two-month halt on these procedures, which are lucrative revenue sources for hospitals, was encouraged by the Trump administration to avoid the risk of spreading infection and prevent hospitals from being overrun. But the halt has battered the industry financially and delayed much-needed care for some patients.
Hospitals argue the liability implications from the coronavirus are immense without greater protections. Cases may have gone undiagnosed for days, especially as the country struggled to ramp up testing capacity. Hospital employees were forced to recycle protective equipment amid severe shortages. Patients who recover are racking up medical bills worth tens of thousands of dollars, and they may suffer from lifelong health problems as doctors are still discovering all the different ways the virus can wreak havoc on the body.
Hospitals that have restarted elective procedures say they’re following safety precautions that will ultimately limit how many they can perform. They’re beefing up the use of personal protective equipment, restricting the number of visitors and doing more coronavirus testing of patients with no known exposure before performing procedures.
The robust liability protections congressional Republicans are demanding would shield hospitals and other employers that follow state and federal coronavirus guidelines for best practices at the time. Hospital lobbyists insist this would still leave room for punishing negligent facilities while reassuring hospitals battling a once-in-a-lifetime outbreak.
“Obviously there’s a pretty strong desire to maintain the health care system by making sure that the people acting according to the standards receive that kind of protection, and aren’t harassed by a bunch of lawsuits,” said Tom Nickels, the AHA’s head lobbyist.
The hospital industry has largely been spared from the initial surge of coronavirus-related lawsuits, which trial lawyers contend is a sign of how strongly hospitals already are protected against litigation stemming from the pandemic. They said courts are unlikely to hold hospitals responsible for shortages in ventilators and protective equipment seen as outside of their control. Further, it may still be difficult to prove that a patient or worker was infected in the health facility.
But Democrats contend sweeping immunity protections would free hospitals from accountability and make it difficult for people to get compensation when there’s demonstrable harm. Sen. Richard Blumenthal (D-Conn.), a member of the Senate panel examining liability, said the GOP’s demands for sweeping protections are a nonstarter.
“I think this parade of lawsuits that the majority leader envisions is really an imaginary boogeyman,” Blumenthal told POLITICO. “I have confidence that businesses and employers have nothing to fear if they simply follow the basic standard of care that applies to their industries.”
Some trial lawyers fighting against broad liability protections insist they’re not looking to capitalize on the health crisis, but they warn that waiving legal recourse for the most negligent facilities could have deadly consequences.
Physicians have already won some new protections from at least 16 state governments, which typically have broader control over tort law. In hard-hit New York, Democratic Gov. Andrew Cuomo granted sweeping immunity from lawsuits that the state’s hospital lobby drafted and lobbied for, which has already helped beat back a lawsuit from a progressive national association of nurses which claimed unsafe working conditions. The New York laws inspired the framework Cornyn is proposing to follow in legislation he’s planning to introduce on the issue — and it’s the model the AHA wants Congress to follow.
However, some trial lawyers stressed that the pandemic automatically makes the standards for hospitals more forgiving. In tort cases, health care providers are held to standards that are “reasonable given the circumstances,” according to Susan Steinman, senior director of policy at the American Association for Justice, the lobby group for the trial bar.
Still, there must be accountability, said trial lawyers. Hospitals managed the first wave of cases without being overrun, there’s greater knowledge on how to reduce infection risk and facilities are stocking up on protective gear for future waves, though shortages still remain.
Trial lawyers also insist that medical malpractice suits have shrunk in recent years, as states expanded liability protections for hospitals and doctors in response to industry complaints about frivolous lawsuits. Unions and trial lawyers have argued those changes have chipped away rights for patients with legitimate complaints.
Tina Willis, a personal injury attorney in Orlando, Fla., said she’s already turned away hospital staff who have approached her about Covid-19 malpractice cases.
“Medical malpractice was already almost extinct because of changes in laws over many years,” she said. “We already declined 99+ percent of all med-mal inquiries.”
