Gail J. McNally
Lawrence, Worden Rainis & Bard., P.C.
What can clients and insurance companies expect in post Covid-19 quarantine litigation? Once the dust settles, and New York Courts allow new case filings, what types of cases are on the horizon? How do we defend them? Can they be staved off? This article will look at the areas we anticipate will generate the most litigation after the shelter in place orders expire, and general lockdown of the state has come to an end. How do you determine client exposure in this new landscape?
In a time when New York remains closed for all but essential business, what entities are facing liability exposure? Once re-opening of nonessential businesses begins, even in a measured way, the businesses reopening will be faced with exposure to liability from those customers on their premises, or in contact with their employees. To limit that liability exposure, it is in a business’s best interest to determine what the recommended mitigation procedures are, and to enforce them stringently moving forward. Documentation that such procedures are being followed will be essential to provide the evidence needed to defeat potential lawsuits.
Each business will have its own set of circumstances that must be confronted. Risks are different for a law firm which has minimal traffic from outside parties than for a beauty salon which has many people coming and going, along with close contact between employees and the public.
One area that is unlikely to see much successful litigation is medical malpractice claims emanating from allegations of negligent Covid-19 treatment. As a part of the broader emergency measure enacted by New York’s Governor, Andrew Cuomo, New York’s Emergency Disaster Treatment Protection Act provides broad ranging immunity to healthcare professionals in the treatment of Covid-19 patients. Under the statute, immunity is limited and does not cover damages caused by willful or intentional misconduct, gross negligence, reckless misconduct, or intentional infliction of harm. Any damages arising from a lack of resources or staffing shortages will not fall into this exception, and the provider will be immune from negligence actions under this legislation.
It is important to note that this new emergency law goes beyond protecting actions related strictly to the treatment of Covid-19 itself. It could encompass good faith decisions and activities by health care providers that were made in response to or as a result of the epidemic. This immunity should extend to a provider which decides to allocate resources to Covid-19 related treatment, which results injury or death of a non-Covid-19 patient, if that decision on
the allocation of resources was consistent with the public good. The provider should be protected from liability as long as the conditions of the statute are met:
a) the facility or professional is providing services pursuant to a Covid-19 emergency rule;
b) the act or omission occurred in the course of such services or treatment and;
c) the professional or facility provided health care services in good faith. Certainly, the boundary of the immunity under this statute will be the subject of litigate in the future.
This legislation will significantly lower the risk to nursing homes, hospitals and other healthcare providers who are anticipating future civil litigation arising from the coronavirus pandemic and the effect it has had on the healthcare system in New York.
However, there are questions about healthcare providers who may face litigation due to the changes in their ability to provide care and diagnostics testing due to the emergency declarations and stay at home order. This coupled with demand on the system creating a lack of available treatment options for non-Covid patients, can create an environment which will increase litigation for innovative care options.
One of the care options which may see increased litigation is the area of telemedicine. Telemedicine has been touted as a safer alternative to seeking treatment in an emergency department or doctor’s office during the time of shelter in place, but it is very easy for a patient with a bad outcome from such treatment to allege that the proper steps and follow-up from the telemedicine visits were not recommended.
Physicians are being urged to utilize telemedicine given the potential exposure to COVID-19. The use of nontraditional medicine instead of face-to-face office visits also has the potential to leave physicians more exposed to future malpractice claims.
We are also likely to see a wave of elective or, non-emergency, treatment as soon as the restrictions on such procedures are lifted and doctors and hospitals are allowed to perform procedures again. With this surge is the possibility of an increase in medical malpractice litigation, due in part to the sheer numbers of procedures, and allegations that either the procedures were rushed or a condition which was non-emergent was neglected leading to a poor outcome.
In all of the above scenarios, and beyond the emergency legislation which provides such broad immunity, the standard in a medical malpractice claim is that “a doctor is not liable for an error in judgment if (he, she) does what (he, she) decides is best after careful evaluation if it is a judgment that a reasonably prudent doctor could have made under the circumstances.” (emphasis added) ( New York Pattern Jury Instruction 2:150).
The defense of the scenarios above will hinge on the fact that the circumstances (overwhelming surge in need for medical services and significant decrease in resources, both human and medical) have lead to a situation where the doctor is making the best decision for care in the situation.
GENERAL LIABILITY ACTIONS
Many businesses will be faced with litigation from Covid-19 related matters. It is impossible to fathom the scope of lawsuits which will arise from this pandemic. Some may be far-fetched, merely testing the waters of what would be sustainable in a post Covid world. Many others will be much more difficult to defend. However, it is quite easy to envision some areas that are likely to see bodily injury actions arise shortly after the stay at home orders are relaxed.
It is probable that we will see actions against landlords and property managers in situations where building tenants (either residential or commercial) test Covid positive and there is spread to other tenants. There are so many means of transmission of the virus that a tenant can make the argument that in addition to proper cleaning and disinfecting of surfaces within the building, the landlord/ property manager was responsible to clean air ducts, heating vents or air conditioning units.
There may be suits against municipalities for failure to properly clean public transportation or enforce social distancing guidelines. These actions may allege that the municipality failed to enforce social distancing among riders and/or failed to properly disinfect the transit facilities. As of early May 2020, the MTA implemented a system of cleaning the entire subway system. There may be claims that this was too little, too late.
Restaurants may be subject to a heightened risk of litigation once they are allowed to open for dine-in service. The restaurant should diligently log the number of patrons it is allowing on premises at any one time, showing that they were consistently in compliance with the occupancy requirements. The restaurant owners will need to have practices and procedures in place for cleaning and disinfecting surfaces, along with mandatory handwashing for the employees. Screening of both employees and patrons for signs of infection may also be necessary to assure that contact from infected individuals is avoided. These new procedures should be written, along with a detailed plan to keep diners at sufficient social distance while in the restaurant. Restaurant owners should consider taking photographs of the new set-up of the facility, including efforts made to keep diners apart while seated, moving about to use restrooms, and any procedure implemented for waiting.
The owners of essential businesses, such as supermarkets, may face litigation from customers who claim that they have contracted the virus in the establishment. One category of shopper which may have a stronger claim against such businesses is the independent for hire shopper (such as an Instacart employee). This type of worker does not work directly for the supermarket yet spends an inordinate amount of time inside the stores. In addition to any claim the worker can make against the service (depending on whether or not the worker is an independent contractor or direct employee who may be entitled to Workers’ Compensation), it is clear that the supermarket will be named as a defendant in the action.
Another area ripe for civil litigation is the prison systems, specifically the private detention centers which house large populations in relatively confined spaces and have been roundly criticized for their slow response to Covid-19 outbreaks in the facilities.
Several such facilities have had newspaper articles written about the Covid-19 outbreak at their facilities. The inmates have written letters regarding an alleged lack of cleaning or disinfection of their living areas and failure to isolate confirmed and suspected Covid cases.
Here, civil liability issues will be raised regarding these allegations as indicated above. Unfortunately, the most important defense to Covid-19 liability, specifically, that the plaintiff cannot show that the virus was contracted at the facility, is unavailable. The population at the facilities are, by definition, a captive audience. Therefore, in defending these claims, it will be of utmost importance to document that the facilities were properly cleaned and disinfected on a regular basis, in compliance with CDC and other governmental guidelines. Further, it will be important to show that the affected parties were properly isolated, and that testing was performed on others who would have been in contact with them. Another defense for these facilities may be an overall lack of testing ability. If the government or other sources could not supply the facility the testing kits and supplies, then the facility was hamstrung in trying to slow the outbreak. Obviously, these contemporaneous complaints to the media may well have an impact on a jury sentiment and may also suggest to a deciding judge that any grant of summary judgment for a defendant in a such negligence action, would be very unpopular.
HOW CAN LITIGATION STRATEGIES MITIGATE CLIENT EXPOSURE
Early investigation will be key, so that necessary and hopefully, favorable documents and testimony are preserved and presented to counsel.
We can anticipate that plaintiff counsel will attempt to obtain information regarding Covid-19 positive employees of the businesses in question. Of course, this type of data is protected by HIIPA, and an employer cannot breach its employees’ privacy by releasing that data. The question, however, will become
if whether a court will order a defendant to provide such data redacted in such a way as to protect personal details.
It will be prudent to demand in discovery that plaintiff exchange schedules, planners, date books, etc., These documents could provide insight into the movements of plaintiff to indicate the level of alternate sources of exposure which plaintiff may have endured outside of the defendant establishment.
In tandem with obtaining information directly from plaintiff about her movements, FOIA requests should be made to the various municipalities for detailed information on COVID-19 cases in plaintiff’s neighborhood. Depending on the municipality, the information may be quite detailed, and include maps showing clusters. The recent implementation of widespread contact tracing may allow for discovery of particular information from the municipalities as to the spread of the virus in very narrow areas. Of course, identifying information of Covid-19 patients will not be discoverable, but the ability to gather as much granular information as possible will allow defendants to show that it is much more likely that plaintiff contracted the virus from the community and not the particular defendant business.
Defense counsel which aggressively implements these discovery strategies will be in the best position to mount a successful defense of the inevitable litigation.
During depositions, it will be important to lock down plaintiff’s detailed movements in the weeks before any symptoms began and/or before the plaintiff tested positive.
Serve subpoenas on plaintiff’s friends and family to obtain records and/or testimony as to their contacts with the plaintiff and their own exposure to create questions of fact of contagion. Also, any Covid-19 cases among plaintiff’s friends and family will need to be explored to the extent that such medical information can be divulged within the parameters of medical privacy laws.
In depositions, determine plaintiff’s own cleaning and hygiene regimen, as well as their use of personal protective equipment, such as masks and gloves. This type of testimony may well assist with a “failure to mitigate” affirmative defense.
In any of these cases, an affirmative defense of assumption of risk must be asserted. It is universally known that there is the possibility of contracting this virus any time you leave your home or have any interaction with anyone. If the plaintiff voluntarily patronized an establishment, the risk was present.
Under current Workers’ Compensation laws, workers will have a difficult time obtaining benefits for Covid-19. The initial hurdle an employee will face in attempting to obtain Workers’ Compensation benefits will be proving that the virus was contracted in the course of employment. There is now a push to amend the Workers’ Compensation law to provide a presumption that “essential workers” Covid exposure was job related and provide full benefits to these workers under the Workers’ Compensation umbrella.
OSHA, as well as state regulations, such as New York’s Industrial Code, requires that an employer provide a workplace free from recognized hazards which are causing or likely to cause serious physical harm. In order to meet these standards, employers need to follow CDC guidelines, including but not limited to those regarding social distancing and facial coverings. When a non-essential business is allowed to operate again, the best arguments against claims of Covid exposure is that the guidelines were diligently and rigorously followed, and documentation of the procedures put into effect to combat potential exposure to the virus was contemporaneously made and preserved.
In New York, an employee may avoid the Workers’ Compensation Law bar to suing his employer if the employee can show “an intentional or deliberate act by the employer directed at causing harm to this particular employee.” (Periera v. St. Joseph’s Cemetery, 864 N.Y.S.2d 492 (2 dept 2008)) If the employee can show that the employer intentionally avoided proper workplace safeguards under federal and state recommended guidelines, the employee may be able to avoid the exclusivity of the Workers’ Compensation statutes.
The best way to defend such actions will be to provide evidence that the guidelines were followed, thereby negating any attempt to show an intentional or deliberate act placing the employee at harm.
The issues which will arise for the courts in the coming months and years will involve defining an employer’s duty to prevent the spread of Covid-19 in the workplace; how to determine if an employer violates that duty; how to determine if the employee contracted Covid-19 at the workplace and whether Workers’ Compensation statutes are a bar to lawsuits by employees against employers and co-employees in this landscape. Of course, claims against non-employer third-parties at a place of employment, including vendors or contractors, may ultimately also result in exposure to an employer through the means of indirect, third-party suit.
As soon as the stay-at-home orders were announced by Governors and Mayors, and it was clear that many, many businesses would be required to close their doors, which events also resulted in claims for business interruption losses flooding insurance carriers. Most claims have been summarily denied on the basis of specific exclusions in the policies, and on the basis of a “lack of direct physical loss or damage to the property”. These knee-jerk denials are likely to be challenged in court. The outcome of these challenges will be entirely based upon the specific policy language, including that of any endorsements.
There is caselaw that holds that contamination is a form of “physical loss or damage” if it impairs the use of the insured property. In Port Authority of New York & New Jersey v. Affiliated FM Insurance Co., 311 D3d 226 (3d Cir.2002), the court held that a building contaminated with asbestos fibers suffered physical loss or damage, triggering property coverage. There are other decisions which find the presence of materials such as gas fumes, bacteria or smoke caused physical loss or damage to property. Of course, these arguments will be made.
Most policies cover losses resulting from impacts to other property which result in business interruptions for the insured. Most commonly, these coverage extensions are “civil authority” coverage, under which a government or military limits access to the insured property because of damage to surrounding property nearby. The shutdown of lower Manhattan after the September 11 attacks is the most memorable example.
In the context of Covid-19 losses, the government ordered quarantines and restrictions on public gatherings, effectively barring the use of the insured premises (office buildings, restaurants, etc.) Such civil authority action may be covered under many property policies, presuming not otherwise in conflict with specific and potentially controlling exclusions. Most commercial policies have exclusions for loss due to contamination by virus and similar events. Any policy containing a specific exclusion for viral/bacterial contamination or an incident triggered by an epidemic/pandemic, will need particular scrutiny.
LEGISLATION TO PROVIDE RETROACTIVE COVERAGE UNDER BUSINESS INTERRUPTION POLICIES
On March 27, 2020, a bill was introduced in New York which proposes a change to business interruption policies in the State. This bill would require any insurer which issued a business interruption policy in the state to make that coverage retroactive in covering Covid-19 related closures. The bill appears directly aimed at those carriers which are claiming that the Coronavirus does not constitute a “physical loss” and, indirectly at the exclusion for infectious disease. Initially, the bill targeted businesses employing 100 people or less. A recent amendment would make void any exclusion based upon a virus, bacterium etc., which causes or is capable of causing disease, illness, or physical distress. The amendment also increases the number of employees to 250 full time employees, which significantly expands the scope of insureds eligible to benefit from this legislation.
Of course, this legislation, if passed, will be in for a fight from insurance carriers. It is likely that the insurance industry will attempt to have the legislation voided under the U.S. Constitution contracts clause, and parallel State constitution clauses.
The Contract Clause states, in pertinent part, that “no state shall pass any legislation impairing the obligation of contracts”. The United States Supreme Court has used a five factor test to analyze whether legislation violates the Contract Clause. Specifically, the Court looks at three narrow factors
1) whether the law substantially impairs a contractual relationship;
2) whether there is a significant and legitimate public purpose for the law ; and
3) whether the adjustment of the rights and obligations under the contract is reasonable and appropriate given the public purpose justifying the law. (Energy Reserves Group Inc. v. Kansas Power & Light Co., 459 US 400(1983). There is precedent for allowing retroactive legislation in a state of emergency.
The United States Treasury Department has now weighed in on the proposed litigation. The Treasury sent a letter to Congress on May 11, 2020, cautioning of the ramifications that legislation retroactively rewriting insurance policies could have on the industry, stating that such a requirement could lead to the destabilization of the sector.
Several lawmakers have introduced bills which would compel the carriers to pay the business interruption losses of the policyholders but would allow the carriers to apply to the applicable state or federal government for reimbursement of such payouts. This type of governmental backstop has been advocated by a broad coalition of insurers and business groups. This type of arrangement would also be in place for future pandemic risks, should they arise.
The sheer scope of the changes and challenges which have been undertaken due to the Covid-19 pandemic will certainly lead to litigation in areas we cannot, at this time, fathom. This worldwide public health emergency has touched the lives of every person in this country, to one degree or another, and will result in changes in our daily lives for the foreseeable future.
The best way to manage the litigation that will arise is to be familiar with the evolving landscape of case law, legislation and scientific guidance. We are prepared to help guide our clients through this ever changing labyrinth with our expertise in litigation, as well as our practical and pragmatic approach to case management.