New Ohio Limits Tort Litigation related to Contracting COVID-19
Acknowledging the legal uncertainties faced by essential workers and businesses in the wake of reopening during the COVID-19 pandemic, the Ohio legislature passed, and Governor Mike DeWine recently signed House Bill (H.B.) 606, which gives businesses and healthcare providers qualified immunity protections from civil lawsuits during a disaster or emergency for any “injury, death, or loss” related to “the transmission or contraction” of COVID-19. In short, something more egregious than mere negligent conduct is required in order to hold a business owner or emergency responder responsible if someone alleges they contracted a COVID-19 infection as a result of that business’ operation. The bill specifically provides that any federal or state public health order does not create new legal duties for purposes of tort liability. The bill and its corresponding protections will be retroactive to the date of the declared state of emergency in Ohio, March 9, 2020, and will expire on September 30, 2021.
However, H.B. 606 is not a total bar to litigation. While the law significantly limits legal exposure to Ohio businesses and emergency workers, plaintiffs may still bring cases alleging COVID-19 transmissions through intentional, willful, or reckless conduct. The legislation defines “reckless conduct” as conduct involving “heedless indifference to the consequences” and involving “substantial and unjustifiable risk” that it will cause exposure to COVID-19.
To the extent the total immunity does not apply, the legislation also bars individuals from bringing a class action against any person alleging liability for damages for injury, death, or loss to person or property caused by exposure to, or the transmission or contraction of, COVID-19.
Finally H.B. 606’s immunizing effect applies to both public and private would-be defendants, and does not distinguish between businesses as vendors and businesses as employers. As a result, the legislation protects organizations against suit from customers and employees alike, where the transmission does not result from conduct that is at least reckless.
Temporary Qualified Civil Immunity for Health Care Providers
Subject to limited exceptions, the new law also shields health care providers from liability in tort actions arising from the “provision, withholding, or withdrawal” of health care services resulting from the COVID-19 pandemic. H.B 606 does not provide total protection; plaintiffs who can prove a health care provider acted with “reckless disregard for the consequences” of their actions, or engaged in “intentional misconduct or willful or wanton misconduct” could still recover.
The H.B. 606 grants immunity to the following individuals and entities:
- Advanced practice registered nurses, registered nurses, and licensed practical nurses
- Respiratory care professionals
- Direct support professionals for individuals with developmental disabilities
- Dentists and dental hygienists
- Behavioral health providers
- Emergency medical technicians (EMTs-basic, EMTs-I, and paramedics)
- Physicians Home Health Agencies
- Physician Assistants
- Hospice Care Programs
- Medicaid Home and Community-Based Services Providers
- Physical Therapists, Occupational Therapists, and Athletic Trainers
- Other health care workers who provide healthcare related services to an individual under the direction of a health care professional with the authority to direct that worker’s activities, including medical technicians, medical assistants, dental assistants, occupational therapy assistants, physical therapist assistants, orderlies, nurse aides, and any other similar individual
- Speech Language-Pathologists and Audiologists
- Facilities that provide health care services, including a variety of facilities the Act specifies
- Laboratory Workers
- Agents, board members, committee members, employees, employers, officers, or volunteers of a home health agency, hospice care program, Medicaid home and community-based services provider, or facility
- Massage Therapists