Republican legislators in Kansas are joining a broader effort to shield doctors, hospitals and businesses from lawsuits stemming from the coronavirus, with business and medical groups pushing them to act quickly.
The effort faces strong opposition from labor unions, trial lawyers and some Democrats. They fear that such measures could be too broad and keep patients, consumers and employees from using the court system to hold businesses and medical providers accountable for negligence or misconduct.
Similar efforts are underway in Congress, with Derek Schmidt of Kansas joining other GOP state attorneys general in calling for legislation to head off “frivolous” lawsuits. Legislators in multiple states, including Mississippi, North Carolina and Utah, are considering their own laws.
In Kansas, the state House Judiciary Committee planned to have the first of three Zoom meetings on the issue on May 13, and its Senate counterpart is expected to meet next week. The full GOP-controlled Legislature plans to meet May 21 for its last remaining day in session this year.
“What about a company who re-purposes their facilities because they’re closed as nonessential but they have the equipment to manufacture masks?” said Eric Stafford, a Kansas Chamber of Commerce lobbyist. “Somebody who’s trying to do a good deed, should they be punished, for liability for failure to prevent someone from getting sick?”
Groups pushing for quick legislative action said they fear businesses that reopened after Democratic Gov. Laura Kelly lifted a statewide stay-at-home order on May 4 will face lawsuits if customers or employees get sick, or that customers or employees will sue businesses that were deemed essential and remained open while others closed.
Stafford said the chamber wants to ensure that businesses are protected if they followed health officials’ guidelines for operating safely.
The debate also comes after President Donald Trump directed meatpacking plants to stay open despite the spread of the coronavirus among workers. Kansas has seen seven large outbreaks at such plants, accounting for nearly 1,300 confirmed cases, or 18% of the state’s total, with two COVID-19-related deaths.
Dr. Beth Oller, a family physician in Rooks County in northwestern Kansas, said she thinks businesses should face legal liability if, for example, they won’t provide proper protective equipment for employees. But, she said, it could be “a bad precedent” to allow lawsuits when one customer of a business following health guidelines gets the virus from another customer.
She also said in nursing homes, even with aggressive steps to contain the virus if there’s one case, “It’s going to be exceptionally difficult to prevent the spread of any cases.”
Healthcare providers worry that they could face lawsuits if a patient’s health declined or a patient dies after providers delayed surgeries or other care because of concerns about spreading the virus.
Chad Austin, the Kansas Hospital Association’s executive vice president, said the group wants to protect medical providers “who did what they were asked to do” by focusing on combating the coronavirus.
“They were focused probably where they were instructed to be focused for sure, but you never know, there could be somebody forgoing care at that time who ended up having an issue,” added Cindy Samuelson, the association’s membership vice president.
David Morantz, a Leawood attorney and the Kansas Trial Lawyers’ Association president, said medical providers already aren’t subject to paying damages for injuries if they can show they followed generally accepted standards of care. He said adhering to government recommendations or directives to cancel elective surgeries because of the pandemic would qualify.
While Kelly has been open to proposals for protecting medical professionals, Senate Minority Leader Anthony Hensley, a Topeka Democrat and key ally of the governor’s, said the issue is too big, too complex and too contentious for lawmakers to tackle before adjourning May 21.
And labor unions have been quick to object to the proposals to prevent lawsuits, both in Kansas and nationally. The Working Kansas Alliance, a coalition of union groups, called it a “dangerous agenda” that would put workers at risk for “saving a buck on the corporate balance sheet.”
Morantz said he fears that any new law could be “pushed beyond what anybody ever intended” to cover actions or cases not directly involving the coronavirus. He also said shielding businesses from lawsuits will give them an incentive not to be as safe and would make consumers wary.
“If it’s safe reopen the economy, why is immunity needed?” Morantz said. “If immunity’s there, it’s going to make people scared and it’s going to delay rebooting the economy.”
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