On February 23, 2021, the Missouri Senate passed SBs 51 & 42 which address immunity from liability for lawsuits relating to Covid-19. The House had its first read of the Bills February 23rd as well. The current bill addresses immunity for claims against businesses, health care providers, and product manufacturers/distributors/sellers.
If signed by the Governor, these bills would amend RSMo Chapter 537 by adding 6 new sections. The statutory provisions specifically relating to immunity for health care providers include the following:
New Section 537.1000(5) defines a “Covid-19 Medical Liability Action” as a civil action:
- Brought by a person who suffered personal injury or a representative of a person who suffered personal injury;
- Brought against a health care provider; and
- Alleging any harm, damage, breach, or tort resulting in the personal injury alleged to have been caused by, arising out of, or related to a health care provider’s act or omission in the course of arranging for or providing Covid-19 related health care services if such health care provider’s decisions or activities with respect to such person are impacted as a result of Covid-19.
Section 537.1000(8) further defines “Covid-19 related health care services” as any act or omission by a health care provider, regardless of the location, that relates to:
- The diagnosis, prevention, or treatment of Covid-19;
- The assessment or care of an individual with a confirmed or suspected case of Covid-19; or
- The care of any individual who is admitted to, presents to, receives services from, or resides at, a health care provider for any purpose if such health care provider’s decisions or activities with respect to such individual are impacted as a result of Covid-19.
Finally, Section 537.1000(11) defines a “health care provider” as: any physician, hospital, HMO, ASC, LTC facility, dentist, RN or LPN, optometrist, podiatrist, pharmacist, chiropractor, PT, psychologist, physician-in-training, any person authorized to practice consumer directed services, personal care assistance services, or home-based care, any person providing behavioral or mental health services, any person or entity that provides health care services pursuant to a license or certificate, and the respective employers or agents of any such person or entity providing health care services, and any person, health care system, or other entity that takes measures to coordinate, arrange for, provide, verify, respond to, or address issues related to the delivery of health care services.
Utilizing the above defined terms, Section 537.1010 establishes statutory immunity for health care providers for Covid-19 related claims as follows:
- Notwithstanding any other provisions of law to the contrary, and except as provided in subsection 2 of this section, no health care provider shall be liable in a Covid-19 medical liability action unless the plaintiff can prove:
- Recklessness or willful misconduct by the health care provider; and
- That the alleged harm, damage, breach, or tort resulting in the personal injury was caused by the alleged recklessness or willful misconduct.
- For purposes of this section, an elective procedure that is delayed with good cause shall not be considered recklessness or willful misconduct.
Thereafter, Section 537.1020 allows for punitive damages to be awarded in any Covid-19 related action “in accordance with sections 510.260 to 510.265 and subsection 8 of Section 538.210.” [These sections, amended effective August 28, 2020, establish the clear and convincing standard for submissibility of claims for punitive damages and also outline the procedural steps that must be met before any plaintiff will be allowed to plead a claim for punitive damages. In actions against health care providers, Section 538.210 allows punitive damages only when a plaintiff proves, by clear and convincing evidence, that the provider “intentionally caused damage to plaintiff or demonstrated malicious misconduct.” In medical malpractice claims, evidence of conscious disregard for the safety of others does NOT satisfy the requirements.]. Additionally, under this new section, recovery of punitive damage is capped at 9x the amount of compensatory damages awarded.
Section 537.1035.5 establishes a shortened statute of limitations for Covid-19 medical liability actions, stating “no action shall be commenced in any court later than 1 year after the date of the discovery of the alleged harm, damage, breach, or tort unless tolled for proof of fraud, intentional concealment, or the presence of a foreign body which has no therapeutic or diagnostic purpose or effect in the person of the injured person.”
Under Section 537.1035.1, the provisions of Sections 537.1000 through 537.1035 will expire 4 years after the effective date of the Act.
It was the intent of the Missouri House that the amendments to Chapter 537 are an Emergency Act which, under the Missouri Constitution, should be given full force and effect upon its passage and approval due to the act being “deemed necessary for the immediate preservation of the public health, welfare, peace and safety.” However, that measure did not obtain the required 2/3 vote in the House and, as a result, if the Senate passes the bill it will have an effective date of August 28, 2021.
If passed, what do the new sections in Chapter 537 mean for Missouri Health Care Providers?
At a minimum, these new statutory provisions will serve to bar claims for medical negligence by patients with Covid-19. Whether the immunity will extend to non-Covid positive patients who claim damages arising out of allegedly negligent health care treatment during the pandemic is a question which – at least at this time – appears open for discussion.
The definition of what constitutes Covid-19 related health care services giving rise to immunity under this statute is also certainly up for debate. Subsection (c) of the statute appears to have been broadly written to cover all kinds of in-hospital claims for negligence so long as there is some evidence that the care provided was “impacted” by Covid-19. Because “impacted” is not further defined, this element will likely be the subject of substantial debate in medical malpractice cases filed in courtrooms across the state over the next few years. Additionally, what constitutes recklessness or willful conduct on the part of a health care provider will likely be a question of fact for a jury.
There is also the potential for controversy arising out of what constitutes “good cause” for the delay of elective procedures as well as the circumstances of the “discovery” of the harm/damage/tort for the calculation of the 1-year statute of limitations for these claims.
If passed by the House and signed into law by Governor Parsons, we anticipate raising the statutory immunity provision set forth in Section 537.1010 in dispositive motions and/or responsive pleadings on behalf of any health care provider client we are defending.