Governor Signs Legislation To Prevent Frivolous Lawsuits Related To Pandemic

Governor Signs Legislation To Prevent Frivolous Lawsuits Related To Pandemic

by | Apr 6, 2021 | News

By B. Hamilton |

PHOENIX — Arizona businesses can breathe a sigh of relief now that Governor Doug Ducey has signed legislation providing COVID liability protections to Arizona businesses and healthcare workers. The bill, sponsored by Sen. Vince Leach, “establishes a presumption that a person or provider acted in good faith if they adopted and implemented reasonable policies related to the public health pandemic.”

Leach says the bill was needed to protect businesses and healthcare providers from “frivolous lawsuits.”

Leach said that people are the frontlines of the pandemic “will be targets of meritless lawsuits,” without protection.

“With this bill coming along this summer,” said Leach, “the plaintiff will have the burden to prove by clear and convincing evidence that a person or provider failed to act, or acted with willful misconduct and a gross negligence in order to win a civil lawsuit.”

Leach says the bill provides “common sense protections for the frontline workers in healthcare, schools, and businesses, who have been invaluable during the pandemic response in Arizona.”

Nationwide, according to Leach, more than 2000 coronavirus related cases of them brought forward despite businesses following approved guidelines.

The legislation applies during the current public health pandemic and protects health care institutions and other service providers for any act or omission that is alleged to have occurred during a person’s screening, assessment or treatment that is related to the health emergency. Providers include educational institutions, school districts or charter schools, property owners, lessees and lessors, nonprofit organizations, religious institutions, the State and local governments, health care providers and institutions, and nursing and residential care facilities.

The legislation also provides a presumption for health professionals or health care institutions that they have acted in good faith if they relied on and reasonably attempted to comply with applicable published guidance, while also ensuring that such a presumption can be overcome if there is evidence of gross negligence or willful misconduct.

“Small businesses need certainty under the law that if they act in good faith, they’ll be protected from frivolous lawsuits,” said Leach. “I’m grateful to the organizations and fellow legislators who supported Senate Bill 1377, and to Governor Ducey for signing this important legislation.”

SB1377 Provisions

Public Health Pandemic Civil Liability

1. Precludes from liability for damages, during a public health pandemic state of emergency declared by the Governor, a person or provider who acts in good faith to protect a customer, student, tenant, volunteer, patient, guest or neighbor, or the public (litigant), from injury from the public health pandemic for injury, death or loss to person or property that is based on a claim that the person or provider failed to protect the litigant from the effects of the public health pandemic, unless it is proven by clear and convincing evidence that the person or provider failed to act or acted and the failure to act or action was due to that person’s or provider’s willful misconduct or gross negligence.

2. Establishes a presumption that a person or provider acted in good faith if the person or provider adopted and implemented reasonable policies related to the public health pandemic.

3. Applies the standard for liability to all claims that are filed before or after the general effective date for an act or omission by a person or provider that occurred after March 11, 2020, and that relates to a public health pandemic that is the subject of the state of emergency declared by the Governor.

4. Exempts claims for workers compensation from the outlined liability standard.

5. Defines provider as:
a) a person who furnishes consumer or business goods or services or entertainment;
b) an educational institution or district;
c) a school district or charter school;
d) a property owner, property manager or property lessor or lessee;
e) a nonprofit organization;
f) a religious institution;
g) the state or a state agency or instrumentality;
h) a local government or political subdivision, including a department, agency or commission of a local government or political subdivision;
i) a service provider;
j) a health professional; or
k) a health care institution.

Health Professionals and Health Care Institutions

6. Precludes from liability for damages, during a public health pandemic state of emergency declared by the Governor, a health professional (professional) or health care institution (institution) that acts in good faith in any civil action for an injury or death that is alleged to be the professional’s or institution’s action or omission while providing health care services in support of the state’s response to the state of emergency, unless it is proven by clear and convincing evidence that the professional or institution failed to act or acted and the failure to act or action was due to that professional’s or institution’s willful misconduct or gross negligence.

7. Applies the outlined limited liability to any action or omission that occurs:

a) during a person’s screening, assessment, diagnosis or treatment and that is related to the public health pandemic that is the subject of the state of emergency; or
b) in the course of providing a person with health care services and that is unrelated to the public health pandemic that is the subject of the state of emergency if the professional’s or institution’s action or omission was in good faith support of the state’s response to the state of emergency, including:
i. delaying or canceling a procedure that the professional determined in good faith was a nonurgent or elective dental, medical or surgical procedure;
ii. providing nursing care or procedures;
iii. altering a person’s diagnosis or treatment in response to an order, directive or guideline that is issued by the federal government, the state or a local government; or
iv. an act or omission undertaken by a professional or institution because of a lack of staffing, facilities, equipment, supplies or other resources that are attributable to the state of emergency and that render the professional or institution unable to provide the level or manner of care to a person that otherwise would have been required in the absence of the state of emergency.

8. Establishes a presumption that a professional or institution acted in good faith if the professional or institution relied on and reasonably attempted to comply with applicable published guidance relating to the public health pandemic that was issued by a federal or state agency.

9. Allows a party to introduce any other evidence that proves the professional or institution acted in good faith.

10. Applies the standard for liability to all claims that are filed before or after the general effective date for an act or omission by a person or provider that occurred after March 11, 2020, and that relates to a public health pandemic that is the subject of the state of emergency declared by the Governor.

11. Exempts claims for workers compensation from the outlined liability standard.

12. Specifies, for claims against a nursing care institution or residential care institution, where the care in question did not directly relate to the public health pandemic, the nursing care institution or residential care institution has the burden to prove the act or omission was the direct result of having to provide care to patients needing treatment for the pandemic or due to limitations caused by the pandemic.

Wide-Ranging Pandemic Liability Bill Needs Just One More Vote To Reach Ducey

Wide-Ranging Pandemic Liability Bill Needs Just One More Vote To Reach Ducey

by | Mar 30, 2021 | News

By Terri Jo Neff |

On Tuesday, the Arizona Senate is expected to vote one more time in favor of SB1377, a bill introduced by Sen. Vince Leach (R-LD11) to protect a wide range of businesses, government entities, and other organizations against liability for claims of negligence related to the COVID-19 pandemic.

SB1377 initially passed the Senate last month with a minor amendment. It cleared the House on Monday on a 31 to 29 vote after another amendment. But because the House added yet another amendment to the bill, it must go back to the Senate for the caucus to concur or refuse the change, which is expected to be accepted Tuesday.

The bill would then be sent to Gov. Doug Ducey, who appears ready to sign it, thus establishing a new standard for COVID-19 related liability claims retroactive to March 10, 2020.

After Monday’s House vote, the Arizona Chamber of Commerce tweeted a thank you to the 31 representatives who voted for the bill. “This bill ensures frontline healthcare providers, businesses, schools, and other entities are extended commonsense liability protections that will help us get back to work,” the tweet said.

The legislation addresses liability claims involving a public health pandemic under a state of emergency declared by a governor. It protects any person or provider “who acts in good faith to protect a customer, student, tenant, volunteer, patient, guest or neighbor, or the public” from liability during a pandemic for an injury, death or loss to person or property based on a claim that the person or provider failed to protect against the public health emergency.

  • SB1377 establishes a presumption that a person or provider acted in good faith if the person or provider adopted and implemented “reasonable policies related to the public health pandemic.” No definition, however, is provided for what constitutes reasonable policies.
  • Those covered by the legislation as a provider include a person who furnishes consumer or business goods or services or entertainment; an educational institution, district, or charter school; a property owner, property manager or property lessor or lessee; a nonprofit organization; a religious institution;
  • the state, a state agency, or instrumentality; any local government or political subdivision, including all departments or commissions; a service provider; a health professional; or a health care institution.

A key feature of Leach’s bill is a change in the type of alleged acts or omissions which someone can pursue damages for related to the pandemic. It removes simple negligence as being actionable and would require a plaintiff to meet the criteria for gross negligence or willful misconduct.

Opponents argue the legislation creates unnecessary hurdles for Arizonans seeking legal redress and that business owners, government officials, and healthcare professionals will escape responsibility for death, injuries, and other harms by blaming faulty or careless decisions on the pandemic.

Even those lawsuits which clear the gross negligence or willful misconduct threshold may not be able to meet the second significant change SB1377 makes to civil liability standards.

Currently a jury is asked to determine if a plaintiff has proven a claim by the “preponderance” of the evidence, a standard based on whether something was more likely or not to have occurred.  But SB1377 raises that to a higher standard of “clear and convincing” evidence.

  • Among those who oppose SB1377 are the American Civil Liberties Union of Arizona, Arizona Trial Lawyers Association, and Arizona Center for Disability Law. A constitutional challenge is expected if the bill becomes law based on provisions which make it harder for Arizonans to initiate legal action.

The most controversial provision of SB1377 relates to nursing care or residential care institutions.

An amendment added Monday puts the burden of proof on such institutions which wish to argue that a claim for an act or omission involving care not directly related to the public health pandemic should be mitigated because the institution had to treat other patients for the pandemic or that the institution experienced limitations of staff or equipment as a result of the pandemic.

Supporters of SB1377 include several insurance companies, as well as the Alliance of Arizona Nonprofits, Arizona Auto Dealers Association, Arizona Bankers Association, Arizona Board of Regents, Arizona Healthcare Association, Arizona Medical Association, Arizona Restaurant Association, and the County Supervisors Association of Arizona.