Personal Injury Lawsuits & Covid-19
November 20, 2020
The COVID-19 pandemic has radically changed many aspects of life in the United States. From wearing masks in grocery stores, to cancelling 4th of July celebrations and closing down businesses, Americans have suffered significant financial damages and emotional pain over the past nine months. The pandemic has also permanently changed many aspects of life and work. Given the nature of the pandemic, it is anticipated that there will be an increase in personal injury lawsuits related to COVID-19.
What is a Personal Injury Lawsuit?
Most personal injury claims are based on negligence (situations in which a person or business did not use appropriate care). During COVID-19, the difficulty for plaintiffs lies in proving the precise source of exposure to the virus and identifying the exact action made by a defendant that demonstrates their lack of reasonable care. Notwithstanding the significant challenges with this, there are certain situations in which a negligence claim can be filed by a plaintiff who has contracted COVID-19.
Types Of Anticipated Lawsuits Related To COVID-19
Plaintiffs may have grounds to file a personal injury lawsuit for several different types of negligence in connection with COVID-19 exposure.
Nursing Home Negligence
If nursing homes failed to take reasonable precautions to protect elderly residents from infections, then the resident can sue the nursing home. The plaintiff would have to provide evidence that shows they contracted COVID-19 due to poor safety practices, which may include unsanitary conditions, inadequate response to a community outbreak and lack of personal protective equipment.
Appropriate safety precautions that every nursing home should have taken during the pandemic include quarantining ill staff and residents, cleaning and disinfecting common areas and private rooms, and educating residents of the risks. Each case is unique, and the specific measure that should be taken will depend on the circumstances.
In May 2020, 15 states granted legal protection to nursing homes and other long-term care facilities against lawsuits related to the COVID-19 pandemic. In these states, certain facilities are released from liability for ordinary negligence that may have caused COVID-19 harm, but they are typically still liable for gross negligence or intentional misconduct.
If a patient contracted the COVID-19 virus through negligence at a healthcare facility, he or she may have grounds to file a medical malpractice claim. Unlike ordinary personal injury cases, medical malpractice claims involve a specific standard of care. Plaintiffs will typically have to retain an expert who will be able to explain how the defendant acted in a manner that fell below the appropriate standard of care.
Cruise Ship Liability
If a plaintiff contracted the COVID-19 virus while traveling on a cruise ship, he or she may be able to sue the cruise ship company if it failed to take reasonable safety precautions. For example, if crew members did not identify and quarantine infected passengers within a reasonable time, then a healthy passenger who later became ill with COVID-19 may have grounds for a personal injury lawsuit.
Though many companies transitioned their employees to remote work during the COVID-19 pandemic, millions of employees were required to continue working at their regular place of work. Healthcare employees, public safety employees (such as firefighters, police officers and paramedics) and grocery store employees were not given the luxury of a remote work option and had to put themselves in harm’s way.
Because most states require employers to carry Workers’ Compensation insurance, most employees will have to accept benefits from the insurance company instead. Still, some employees may struggle to claim Workers’ Compensation benefits if the state’s laws don’t cover infectious diseases.
The “Safe To Work” Act
Lawmakers have proposed a bill that would provide a significant liability shield to businesses for anticipated COVID-19-related lawsuits. According to The National Law
Review, the “Safe To Work Act” would provide “an exclusive, limited remedy for those who allege a COVID-19-related injury through exposure at a business, during one’s employment, or while receiving medical care. The Bill would also limit certain product liability for drugs or medical devices.”
If passed, plaintiffs would need to prove, with clear and convincing evidence (within one year), that:
- The business did not make reasonable efforts to comply with applicable governmental standards and guidance
- The business engaged in gross negligence or willful misconduct that caused exposure to the virus
- The exposure caused the plaintiff’s injury (be it physical, mental or emotional)
These requirements would make it much more difficult to prove a viable exposure claim. The Bill also significantly shortens the statute-of-limitations period for personal injury claims, which are typically two to four years.
According to The National Law Review, “The need to show the causal link is significant, given the potential for COVID-19 exposure through a variety of sources.” If passed, a business would have a rebuttable presumption that they made reasonable efforts to comply with safety guidelines if it maintained a written COVID-19 mitigation policy.
Author: Jim P. Kelly Esq.
James “Jim” P. Kelly Esq. is a personal injury attorney who can bring perspective, compassion and skilled advocacy to your personal injury case. Need a personal injury attorney, Jim is ready to assist you.