Kansans won’t have needed protections if lawmakers rush to limit coronavirus liability

Let’s hope that the Kansas Legislature does not get around to limiting liability for COVID-19-related claims when it meets for its one-day-only legislative fire sale session on Thursday.

Since the main purpose of meeting seems to be to boost Kansas Senate President Susan Wagle’s U.S. Senate campaign, which isn’t so much faltering as flat-out faltered, there may not be time for much mischief beyond trying to show Gov. Laura Kelly who’s boss.

But the proposals that were being batted around during a Zoom hearing of the House Judiciary Committee on Wednesday were so thrown-together and broad that it’s hard to see what good they would do.

The abuses they’d encourage are plain enough, though. And is this effort really even about COVID-19, or is it about limiting last-resort legal protections for Kansans under cover of this pandemic?

No business or health care provider can guarantee a perfectly virus-free environment for employees or customers. But in their current, unfinished form, these proposals would make it too hard to hold doctors, hospitals and businesses accountable for any negligent or harmful coronavirus-related behavior. And already lightly regulated and infrequently inspected nursing homes would be even freer to disregard the safety of residents.

This is all part of a national push to limit such protections. Kansas Attorney General Derek Schmidt is one of the Republicans pushing Congress to rein in an expected tsunami of the COVID-19 equivalent of lawsuits over coffee served too hot. (Although in that notorious but widely mischaracterized 1994 suit against McDonald’s, the finding reflected the fact that the coffee was routinely kept scalding, at 185 degrees, caused third-degree burns on the plaintiff’s legs and genitals and required extensive surgery. That’s how the courts are supposed to protect consumers.)

At the House hearing, Kansas Chamber of Commerce lobbyist Eric Stafford told the committee that without new legislation, businesses would surely be punished for doing the “good deed” of rushing to produce something coronavirus-related that they don’t usually produce.

David Morantz, president of the Kansas Trial Lawyers Association, answered that unfortunately, it isn’t only doers of good deeds who are coming out with COVID-related products.

“There are some bad actors out there” interested in cashing in on the coronavirus with various scams and shortcuts, he said. And if, for instance, they produced faulty PPE, the proposed curbs on liability could leave doctors and nurses with no recourse.

“Bad actors exist on both sides,” Stafford said, though employers, their employees and customers needn’t be on opposing sides. He said businesses have “gone above and beyond” on COVID-19 safety and insisted that making it much harder to penalize unsafe practices would not encourage more of the same.

Morantz also tried to quell concerns that health care providers could be sued over procedures or visits that were put off or didn’t happen because of the pandemic. He said medical providers even now don’t have to pay damages for injuries if they follow basic, widely accepted standards of care. Limiting non-coronavirus medical treatment during the pandemic would easily fall into that category, he said.

Cary Silverman, a DC partner with Shook, Hardy & Bacon, speaking for the American Tort Reform Association and for the Kansas Chamber said the standard for a finding of negligence should be raised so that only a business acting “willfully or maliciously” would be liable for anything COVID-19-related.

Only, how could that ever be proved? Would the employer have to yell, “And I hope you get COVID, which is why I’m taking no precautions!”

Similarly, a lobbyist for hospitals and health care providers said their proposal wouldn’t apply in cases involving “willful and wanton” conduct. Morantz answered that you don’t even know how willful or wanton conduct was until you get into the discovery phase of a lawsuit.

But the single most convincing argument of the day came from Mitzi McFatrich, of Kansas Advocates for Better Care, who said nursing homes routinely operate with less staff than is safe. “Many facilities did not practice good infection control before COVID,” she said, with hundreds of repeat offenders and only the most serious abuse triggering an on-site investigation.

These proposals would let nursing homes in particular off the hook in ways no one who even pretends to care about older Kansans can justify. “Stripping elders of their rights will put more elders at risk,” McFatrich said.

Too much can go wrong for too many to do this on the fly. And if Kansas lawmakers wanted to help hospitals, they should have passed Medicaid expansion.

This story was originally published May 15, 2020 at 5:00 AM with the headline "Kansans won’t have needed protections if lawmakers rush to limit coronavirus liability."