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article imageOp-Ed: Who’s liable for COVID-19 deaths? You may be surprised.

By Paul Wallis     Aug 1, 2020 in Health
New York - As the pandemic destroys the global economy, another issue is waiting, perhaps too long, in the wings: Legal liability. Laws have been enacted, but test cases are few on the ground.
There are multiple issues, ranging from workplaces to healthcare workers liability. If you search legal liabilities for covid-19 deaths USA you’ll see a lot of information. Too much information, in fact, to get much more than a basic idea of what is covering whom. The same search in News gets more panicky, fast. Multiple issues and cases are emerging.
If you’re somehow getting the impression that COVID-19 has just developed a New, toxic characteristic, you’re right. Legal liabilities can be extensive, and expensive.
The basic issues in liability may range from medical negligence to failure to comply with regulations in workplaces. The regulations are pretty much all over the place, mainly due to lack of legal precedent and the inevitable run-in time for working regulations.
Some people are specifically exempted from liability, like volunteer workers, but healthcare professionals aren’t, for example, under the Federal CARES Act. In some states, like New York, an executive order waived laws to provide immunity to healthcare professionals.
…So where does this leave the bereaved? Nowhere much, yet.
A pattern is emerging, and it’s not too pretty. For example - Aged care homes are the classic incubators for COVID-19. These often very expensive facilities are highly sensitive to a range of other issues, notably standard of care, at the best of times.
However – When someone dies in a very expensive facility, you can expect a lot of questions to be asked. This is the point where the legal crossover to the rest of the community starts. Deaths in which the loss of a loved one impacts the family bottom line can destroy families financially. Suing may be their only option for any financial relief. These families may not be able to afford legal action, and their rights are basically non-existent unless they can mount a class action against a specific healthcare provider.
Where does liability law leave healthcare providers? In doubt, and possibly liable.
Healthcare providers may also find themselves in liability situations through no fault of their own. This is largely due to the unavoidably slapdash nature of regulations made on the run. This is a new virus; whatever provisions have been put in place have been put there on the basis of established knowledge. That knowledge is pretty basic.
Even now basic medical facts, like post-COVID-19 disorders, are still emerging all the time. The net result of this situation is that literal life-and-death situations are now a sort of legal raffle, in the absence of authoritative case law decisions.
What about workplaces? Guess- You may have to.
Virginia recently enacted new COVID-19 regulations which may not be a template for other states, but are indicative. These regulations, called the Emergency Temporary Standard (ETS) are based on management of onsite risk, as much as setting guidelines for management of workplace practices.
The ETS measures include notifications to the state department of health, building owners, and the state department of labor and industry. The ETS also includes multiple onsite safe workplace requirements.
If you check the link, you’ll notice that this sort of compliance doesn’t address legal liabilities. It can’t. That’s the other big problem facing the states. If someone else isn’t liable, the states may well be held liable, whether they are or not. So may employers and workplaces. It’s not a great incentive for hiring, or taking unknown risks with liabilities in general.
Liability impacts
Even the idea of the impact of liabilities on the workplace and wider community and economy is quite scary. Typically, liability scenarios are aggressively pursued for damages which can be very high indeed. Limiting payouts may or may not be an option.
It’d be very difficult to contest the basic legal principles of a safe workplace or care facility. Insurers may not cover either workplaces or providers, depending on the level of exposure to risk for themselves. (In fairness, the insurers have a point here. Covering a finite known risk is one thing; covering “anything and everything to do with an unknown rampaging virus” is very different.)
The sheer number of deaths in the United States to date may or may not amount to massive liabilities for the healthcare sector. Infections in unsafe work environments may also be a factor, although proving where you got a virus is highly debatable.
The way out of this for both healthcare and the bereaved is to create government facility to manage compensation on a fair and equitable basis. Liability payouts wouldn’t have to be gigantic, but enough to properly cover serious financial needs. Compensation needs to be meaningful, not nominal.
It’s either that, or possibly clog the courts with a massive volume of lawsuits for years or even decades.
This opinion article was written by an independent writer. The opinions and views expressed herein are those of the author and are not necessarily intended to reflect those of
More about COVID19 legal liabilities, law vs pandemic, covid19 insurance, Virginia ETS regulations, workplace COVID19 legal liabilities
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