Chris Hayes, MSNBC: “Is the liability protection language acceptable to you?”
Senate Minority Leader Charles E. Schumer (D-N.Y.): “Not at all. It is so extreme. You heard — you said before what [Sen. Mitch] McConnell said, ‘We need things not extraneous, extraneous to covid.’ You know what’s in this bill? No medical malpractice suits till 2024, even if they’re not covid-related. What it says is, if a employer really puts his —”
Hayes: “Wait a second. Wait a second. Wait a second. Really?”
Schumer: “That’s in the bill. Yes. It’s in the bill. It’s amazing. This is a K Street, corporate-lawyer wish list.”
Hayes, the MSNBC host interviewing Schumer, fell back in his chair and rolled his eyes upon hearing this answer. “Really?” he asked.
No, not really.
As Congress debates another round of coronavirus relief legislation, Senate Majority Leader Mitch McConnell (R-Ky.) says his “red line” will be shielding businesses, schools and health-care providers from lawsuits related to covid-19. The Safe to Work Act, which McConnell is sponsoring with Sen. John Cornyn (R-Tex.), does just that but in a highly technical manner.
“As states gradually reopen their economies, front-line health-care workers, small businesses and schools face a second pandemic of frivolous lawsuits threatening to bankrupt them,” Cornyn said, echoing concerns from the U.S. Chamber of Commerce and business groups.
Schumer and some experts say a clause tucked away in the GOP’s liability shield legislation could chill all kinds of medical malpractice lawsuits. Fair enough. But what came out, in the fast-paced blur of cable TV, was an overblown and mostly false claim.
The Safe to Work Act would create a cause of action in the federal courts for plaintiffs who were harmed from catching the novel coronavirus at a school, college, charity, church, government agency or business. The defendants in these cases would be held liable only if they failed to make reasonable efforts to follow public health guidelines and committed an act of gross negligence or intentional misconduct.
Schumer was talking about another part of the bill, which would create a federal cause of action for medical malpractice cases involving the coronavirus. A health-care worker or facility would be held liable in court only for an act of gross negligence or intentional misconduct, as the bill is written. The Cornyn-McConnell proposal also would establish federal jurisdiction over all these cases, preempting similar lawsuits in state courts, which experts say have less onerous standards of proof for medical malpractice claims. The Republican bill says the liability shield would be in place until the federal government’s coronavirus disaster declaration expired or 2024, whichever is sooner.
Right off the bat, Schumer’s claim suffers from a big inaccuracy. He said the bill would allow “no medical malpractice lawsuits until 2024, even if they’re not covid-related.” The Senate minority leader did himself no favors by speaking in absolutes. The text of the Cornyn-McConnell bill clearly says patients can sue — and win if they prove gross negligence or intentional misconduct.
A tougher standard? Yes. But the bill does not bar all medical malpractice lawsuits until 2024, as Schumer said.
A Schumer spokesman said the senator’s claim was accurate because the GOP bill creates an all-purpose loophole. The legislation defines the “coronavirus-related health care services” covered by the liability shield as including “the care of any individual who is admitted to, presents to, receives services from, or resides at, a health care provider for any purpose during the period of a Federal emergency declaration concerning coronavirus, if such provider’s decisions or activities with respect to such individual are impacted as a result of coronavirus.”
Reading that language closely, medical malpractice cases that don’t involve covid-19 would be blocked by the liability shield in some circumstances, if the coronavirus “impacted” the health-care provider or facility. Schumer spokesman Justin Goodman said that “the provider can be expected to say that the pandemic impacted their decisions and activities for all services they provided.”
A Senate Republican spokesman rejected that interpretation, noting that health-care providers being sued in these cases would have to offer proof that they were overburdened by the coronavirus. “It isn’t enough for them to just ‘say’ it,” the Senate GOP spokesman said. “That’s not how the American legal system works. Murder defendants don’t avoid trial by just saying ‘I didn’t do it.’ Judges and juries decide those questions.”
In a floor speech May 12 about a previous version of the bill, McConnell said: “To be clear now, we are not talking about immunity from lawsuits. There will be accountability for actual gross negligence and intentional misconduct. That will continue. We aren’t going to provide immunity, but we are going to provide some certainty. … We are going to make sure it is the trial lawyers and not struggling job creators who will need to clear a very high legal burden.”
The medical malpractice legal experts we consulted had concerns about the Republican bill but also indicated that Schumer got his details wrong.
“Schumer was right, though one needs to understand how the bill works in order to understand why he was right,” David C. Vladeck, a law professor at Georgetown University, wrote in an email. “There are a number of provisions of the bill that taken together make it impossible, or virtually impossible, to sue a health-care provider. Let’s start with someone [who is] sick with the virus and doesn’t get medical care that any competent provider would give. That person cannot sue, because the bill nullifies most state tort law and permits only cases of gross negligence or willful misconduct to proceed. The bill’s definitions are even tighter than most state law, and, thus, unless the provider intended to inflict harm, the case would be dismissed at the threshold.”
Allison K. Hoffman, a medical malpractice legal expert at the University of Pennsylvania Carey Law School, said that “the bill does apply specifically to coronavirus-related health-care services, not all medical services.”
“For example, if someone goes in for open heart surgery, and the MD is negligent and she dies, this law would not in my view protect that doctor from liability,” Hoffman wrote in an email. But she and Vladeck both pointed to another potential loophole, where the bill says “acts, omissions, or decisions resulting from a resource or staffing shortage shall not be considered willful misconduct or gross negligence.”
“So if someone dies of covid-related complications because no doctor, nurse, or respiratory therapist was available, that’s not enough to make out a claim because a staffing or resource shortage would not be considered gross negligence or willful misconduct,” Hoffman wrote, adding that “this provision makes me wonder what happens if covid-related care creates spillover elsewhere, such as shortages of ER staff, which then causes people who come in with more routine emergencies to be harmed or die. Is that a coronavirus-related medical liability action?”
Trial lawyers say state laws already provide legal protections for companies facing these kinds of lawsuits unless they act “unreasonably.”
“The reason we don’t support corporate immunity is because current law already protects companies that are doing the right thing,” Julia Duncan, director of federal programs for the American Association for Justice, told the Wall Street Journal.
The Pinocchio Test
It’s a tricky business, translating legislative jargon into punchy lines for cable TV.
Once he was off-camera, Schumer and his staff made a plausible argument that the Republican bill to shield health-care providers from coronavirus lawsuits could chill medical malpractice lawsuits more widely. The legal experts we consulted raised similar concerns. No one disputes that the Cornyn-McConnell bill would impose a higher bar for coronavirus patients seeking to prove medical malpractice claims.
But on MSNBC, Schumer said the GOP bill would allow “no medical malpractice suits till 2024, even if they’re not covid-related.” The bill specifically allows such suits. Hayes was incredulous; he asked again. Schumer doubled down on his answer. He earns Three Pinocchios.
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The Washington Post Fact Checker is working with the CoronaVirusFacts/DatosCoronaVirus Alliance, a coalition of more than 100 fact-checkers who are fighting misinformation related to the novel coronavirus pandemic. Learn more about the alliance here.