On Wednesday, the Ohio Senate passed its version of COVID-19 immunity legislation for health care providers and other businesses during the coronavirus emergency. Senate Bill 308 sailed out of the Senate on a pure party-line, 24-9 vote.
The bill puts the Senate at odds with the Ohio House, which last week passed its own compromise immunity bill -- with substantial Democratic support.
Among those supporting House Bill 606 were Democratic state Reps. Bride Rose Sweeney and Terrence Upchurch of Cleveland, Phil Robinson of Solon and Casey Weinstein of Hudson. Even so, all of the “nays” on the House’s 84-9 vote were Democrats, including Kent Smith of Euclid; Mike Skindell of Lakewood; and Stephanie Howse and Juanita Brent of Cleveland.
HB 606 also includes workers comp protections for front-line workers who contract COVID-19, and is more strictly delimited timewise - expiring at the end of this year (as opposed to April 1, 2021, for the Senate bill).
The Senate bill, sponsored by Matt Huffman of Lima, extends its immunity protections to professional disciplinary actions, which the House bill, sponsored by Rep. Diane Grendell of Geauga County, specifically excludes.
The two bills will need to be reconciled.
Both bills have exceptions. The House bill’s exceptions appear a bit broader. As summarized by the Legislative Service Commission, they include “reckless disregard of the consequences or intentional conduct or willful or wanton misconduct on the part of the person against whom the action is brought;” and, in cases where the person lacks the skills, education and training required, an exception for actions “undertaken in good faith and in response to a lack of resources caused by a disaster or emergency.”
Proponents of these bills include small-business groups, retail merchants, and operators of nursing homes and assisted-living facilities. Trial attorneys initially opposed HB 606 but cleveland.com’s Jeremy Pelzer quoted state Rep. Bill Seitz of Cincinnati saying that trial lawyers now support the bill. AARP Ohio has opposed the bills, and other critics note that during the pandemic, the ability to learn about possibly reckless, unsafe actions by health care providers, especially at long-term-care facilities, is diminished, providing fewer ways to prove recklessness.
But this is a once-in-a-lifetime pandemic. Are short-term immunity bills appropriate? Is the Senate or House approach more appropriate?
Our Editorial Board Roundtable offers its thoughts.
Ted Diadiun, columnist:
Critics here routinely delight in savaging the GOP-dominated Ohio Legislature, so I’m happy to salute the conservative majority for offering this protection to our heroic medical providers so they don’t have to worry about lawyers peering over their shoulders, waiting to pounce on well-intended errors or misjudgments. Don’t expect similar protection from U.S. House Speaker Nancy Pelosi and her minions anytime soon.
Thomas Suddes, editorial writer:
No. That would violate the Ohio Bill of Rights: “Every person, for an injury done him in his land, goods, person or reputation shall have remedy by due course of law, and shall have justice administered without denial or delay.” Furthermore, malpractice suits are already plenty difficult to win.
Eric Foster, columnist:
I’m rarely on board with taking away people’s ability to get their day in court. Bringing a COVID-19 claim is difficult even without this legislation. Imagine proving exactly where you contracted COVID. That’s hard. Especially now, given that much of the state has reopened. It begs the question, why does the General Assembly want to make a hard thing harder?
Lisa Garvin, editorial board member:
The last thing small businesses need right now is to fight pandemic-related lawsuits from tort lawyers looking for a payday. Immunity from liability until 2021 seems sensible until cooler heads prevail and workplace violation patterns emerge. However, this shouldn’t let employers off the hook. There will be justifiable cases, and in our legislature, moratoriums have a tendency to become permanent.
Mary Cay Doherty, editorial board member:
All businesses, not only those in health care, need COVID-19 immunity legislation. Even the most safety-conscious employer cannot control nature. Careful crafting will preserve avenues for legitimate grievances. Tragically, the elderly may be among the most aggrieved. Absent their families’ vigilant advocacy, many nursing home and assisted living residents undoubtedly endure neglect in understaffed facilities. Immunity cannot thwart justice for them.
Victor Ruiz, editorial board member:
If a business does everything to ensure that it is creating a safe space (PPEs, social distancing, proper sanitation, etc.), then they should be protected. Individuals must also do their part to keep others safe (i.e. masks, washing hands, etc.). With that said, institutions and individuals must be held accountable for creating unsafe environments, so any bill must be balanced and include both protections and oversight.
Elizabeth Sullivan, director of opinion:
Blanket immunity laws, even those as seemingly narrowly drawn as Rep. Grendell’s proposal, are dangerous, especially in a pandemic world of great risks and even more unknowns. That said, any short-term immunity legislation must be broadly bipartisan, strictly limited and paired with new safeguards against abuse. Neither of these bills meets those requirements.
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