Want to sue over coronavirus? Kansas residents would be limited under proposals

Kansas residents may soon have limited options if they want to file a lawsuit over COVID-19 as legislators prepare to shield the healthcare industry – and possibly the larger business community – from legal liability.

Lawmakers and lobbyists are scrambling to craft liability protections for the Legislature to pass when it reconvenes next week for a single day. The measures could ultimately affect hospitals, doctors’ offices, nursing homes and a vast range of businesses.

One draft bill from the Kansas Chamber of Commerce would set a high threshold for coronavirus lawsuits and provide substantial legal cover for businesses as they reopen amid the pandemic. It would prohibit lawsuits over injuries from exposure to COVID-19 if an individual doesn’t test positive or tested positive while they were asymptomatic.

Moreover, individuals with the virus but who didn’t require inpatient hospitalization or suffer serious illness or death would also be prohibited from suing. Property owners couldn’t be sued for COVID-19 exposure unless they “willfully or maliciously” failed to guard or warn against infection risks.

The push in Kansas is part of a nationwide effort to limit litigation stemming from the pandemic at a time when healthcare providers and businesses are under enormous financial strain. Missouri lawmakers advanced their own bill last week and Congressional Republicans want action at the federal level.

The stakes are even greater in Kansas after the state Supreme Court last year struck down limits on non-economic damages. The decision creates at least the possibility of large COVID-19 payouts.

Democratic Gov. Laura Kelly and Republicans agree the healthcare industry should enjoy some form of legal protection. But support for shielding non-medical businesses appears much more tentative.

The Legislature’s one-day session, designed to reduce the risk of COVID-19 spread among lawmakers, hands the governor enormous leverage by all but assuring any vetoes will stand.

“She has a really strong veto right now,” said Rep. Fred Patton, a Topeka Republican who chairs the House Judiciary Committee.

On Friday, Kelly told reporters that the Kansas Medical Society and the Kansas Trial Lawyers Association are developing legislation related to the healthcare sector.

“I’m hoping they will come to a mutually agreeable position on that and we’ll get something done on Sine Die,” Kelly said, referring to the last day of session.

As for businesses, the governor said “lots of conversations” are happening, but that it’s “still in formation.”

Rep. John Carmichael, ranking Democrat on the House Judiciary Committee, said Kelly was “misinformed” about discussions between the medical society and the trial lawyers association.

“She had presumed and hoped that that was the case, but to the best of my knowledge there has been no meaningful communication between the trial lawyers and the medical society, unless it’s happened this morning,” Carmichael, of Wichita, said Monday.

Kansas Medical Society director Rachelle Colombo said Monday the Kansas Trial Attorneys Association has a draft of her group’s proposal but that she hasn’t heard anything definitive. In a statement, KTLA president David Morantz confirmed the association has seen the Medical Society’s proposed language and promised to review it.

He called Kelly’s description of a bill negotiation “probably aspirational.”

Colombo said the proposal centers on medical care related to COVID-19 or services that were delayed because of the coronavirus emergency. The liability protections are intended to last for the duration the federal coronavirus declaration for Kansas, which began March 30.

As the virus spread across Kansas, many healthcare providers curtailed elective procedures to limit patient exposure and to conserve supplies for a spike in COVID-19 cases. The decision to limit non-coronavirus care harmed many providers financially.

“To then come out of this and potentially face liability for services they couldn’t render due to the emergency, it’s just insult to injury,” Colombo said.

The quick effort to limit liability has alarmed patient advocates. Mitzi McFatrich, director of Kansas Advocates for Better Care, expressed concerns about an effort to “close the door” to justice.

McFatrich’s group advocates for adults in long-term care and has long been critical of shortcomings in nursing home accountability and oversight in Kansas, including inadequately trained staff.

“We are putting together a situation which isn’t protecting the rights of older adults in terms of their ability to access the avenues for justice that should be open for them,” McFatrich said.

For businesses, the Kansas Chamber of Commerce is developing a plan to provide an extensive legal shield for businesses. Individuals with the virus but who didn’t require inpatient hospitalization or suffer serious illness or death would also be prohibited from suing.

Only a “deliberate act intended to cause harm or threaten exposure” to the virus could trigger legal action. Property owners couldn’t be sued for COVID-19 exposure unless they “willfully or maliciously” failed to guard or warn against infection risks.

Eric Stafford, a lobbyist for the Chamber, said the draft was an old version but that the proposal is almost finalized.

The bill would provide safe harbor protections for those following public health guidelines, he said. People would also have to prove that they contracted COVID-19 in a particular facility and that those who aren’t infected would be unable to sue.

“I think this bill that we’ve drafted strikes a fair balance among protecting businesses who want to open but are concerned over liability concerns for employees and visitors and customers,” Stafford said.

The chamber is also seeking liability relief at the federal level. On Monday, it sent letters to the state’s congressional delegation, urging them to provide manufacturers and other essential businesses with protections from lawsuits.

In the U.S. Senate, Republicans are insistent that the next coronavirus bill include languages to protect reopening businesses from the threat of lawsuits.

“I think one of the biggest things we have to do is pass a liability waiver,” said U.S. Sen. Pat Roberts, a Republican.

At the state level, Kansas businesses are especially focused on liability because of a state Supreme Court decision in June that struck down the longstanding cap on non-economic damages in lawsuits. Juries award non-economic damages to compensate for pain, suffering and mental anguish.

Until last year, Kansas had capped non-economic damages at $325,000.

“Exposure to liability without being able to pass this COVID-specific bill, it definitely exacerbates the problem and has an impact on the business community,” Stafford said.

Carmichael said the law is flexible and can adapt to handle COVID-19 related issues. For instance, the law has always recognized that in emergencies, healthcare providers are held to a different standard of care than they would otherwise, he said

“If we start changing the law, particularly under hurried and emergent circumstances, we may find ourselves making mistakes that make the situation worse, not better,” Carmichael said.

The Star’s Bryan Lowry contributed reporting

This story was originally published May 11, 2020 at 4:55 PM with the headline "Want to sue over coronavirus? Kansas residents would be limited under proposals."