With the emergence of COVID-19, many businesses have carefully taken various precautions to prevent, where possible, viral exposures to their employees and customers. However, despite their good-faith efforts to prevent further infections, many employers and businesses now are concerned about their potential liability to individuals who have nevertheless been exposed to, or injured or killed by, the virus because of their actions or the actions of others.
In response, more than 30 states have now implemented some form of COVID-19 “shield” law. Where adopted, these shield laws offer limited immunity that generally prevents people from suing for COVID-19 related injuries, insofar as the injuries arise out of ordinary negligence.
As one can imagine, the scope and breadth of the immunities granted in shield laws vary significantly from state to state. However, these laws typically protect businesses and others from lawsuits arising from claims related to exposure, injury or death from COVID-19, unless the suing party can prove that either intentional or willful misconduct, or gross negligence resulted in the person contracting COVID-19.
To demonstrate gross negligence, a person must generally present evidence that the action or omission that caused the person to contract COVID-19 amounts to a reckless indifference to human life and was not merely a breach of a reasonable duty of care.
Several Maryland bills were proposed in 2021 that contemplated granting individuals and businesses immunity from liability relating to a COVID-19 exposure, unless the injured party could prove either gross negligence or an intentional action caused the harm. However, none of these bills made it past initial hearings. Thus, Maryland is now in the minority, along with approximately 16 other states, in having not enacted a shield law.
The proponents of the failed Maryland bills have argued that settlements from these cases are harmful to small businesses that have already lost significant revenue due to shutdowns. Conversely, opponents of these bills have argued such laws are unfair as they create escape hatches for businesses and others to evade legal consequences and to disclaim negligence.
Despite Maryland’s failure to enact a shield law, the executive branch of the Maryland government did grant some temporary protections to health care providers by way of executive action. For example, pursuant to public safety legislation, a health care provider is immune from civil or criminal liability if the health care provider acts in good faith and under a catastrophic health emergency proclamation.
Since Gov. Larry Hogan issued a declaration of state of emergency in March of 2020, it appears that most “health care providers” would be afforded some limited protections from COVID-19 lawsuits when their actions were taken in good faith.
However, those protections were temporary. Hogan lifted the state of emergency effective July 1, 2021, followed by a 45-day grace period. Accordingly, the temporary protections for health care providers expired on or about Aug. 15, 2021, except for the duration of the new temporary state of emergency that went into effect on Jan. 4, 2022.
Burden of proof
Given that Maryland has not enacted a shield law, and with the state of emergency not being permanent, there is an open question of whether Maryland will see an increase in COVID-19 negligence claims.
Even without a shield law in place, injured parties must meet a difficult burden of proof. For example, to prevail in a negligence lawsuit, people will need to present expert witness testimony from medical professionals or infectious disease experts to pinpoint the precise point in time when and where their COVID-19 exposure occurred.
Even for experts, this is challenging. Presently, it is thought that there is a latency period when COVID-19 can asymptomatically live in a human host for somewhere between four and 14 days. However, there are also now thought to be multiple strains of the virus in circulation with different rates of communicability, varying incubation periods and different rates of mortality.
Thus, pinpointing the exact moment of exposure, and the harms that would or would not have occurred, but for negligence, will be very difficult.
Barry F. Rosen is the chairman & CEO of the law firm of Gordon Feinblatt LLC, heads the firm’s health care practice group, and can be reached at 410-576-4224 or firstname.lastname@example.org. Justin P. Katz is a member of the firm’s personal injury practice group, and can be reached at 410-576-4102 or email@example.com.