On Sept. 14, 2020, Ohio Governor DeWine signed House Bill No. 606 (H.B. 606) which expands qualified immunity to Ohio’s health care providers and others, including individuals, businesses, and schools, from lawsuits related to COVID-19.
H.B. 606 is designed to expand immunity for a limited period of time. The qualified immunity applies to acts, omissions, conduct, decisions, or compliance taken from the date of the Governor’s Executive Order (2020-01D), issued on March 9, 2020 declaring a state of emergency due to COVID-19, to Sept. 30, 2021.
In Ohio, existing law under Ohio Revised Code (O.R.C.) 5502.30 provides immunity for individuals and corporations acting in good faith in accordance with “an arrangement, agreement, or compact” for mutual aid and assistance during emergency management operations, except in cases of willful misconduct. Existing O.R.C. 2305.2311 provides qualified immunity to health care personnel for emergency care provided in a disaster. The new law substantially expands and, in certain respects, supersedes, existing law during the period the new law is in effect.
Provisions Specific to the Health Care Industry
H.B. 606 expands the types of health care providers and entities entitled to qualified immunity and makes clear that the protection applies to both declared emergencies and declared disasters. The definition of emergency is based on federal declaration. The definition of disaster includes, inter alia, an epidemic that is declared a disaster by the government.
The qualified immunity applicable to tort actions brought against health care providers covers both acts and omissions in the provision, withdrawing, or withholding of services during a disaster or emergency, any decision related thereto, and compliance with orders issued during and in response to the disaster or emergency. H.B. 606 also provides qualified immunity in circumstances where a health care provider is unable to treat, diagnose, or test a person for any illness, disease, or condition, including the inability to perform any elective procedure, due to applicable government orders. The qualified immunity applies to both liability in tort actions and accountability in professional disciplinary actions. The qualified immunity does not apply to tort actions brought against health care providers if the conduct is shown to include a “reckless disregard for the consequences so as to affect the life, or health of the patient or intentional misconduct or willful or wanton misconduct.” Similarly, it does not apply in a professional disciplinary action if the health care provider’s action, omission, decision, or compliance constitutes gross negligence.
Provisions Applicable to Businesses, Schools, and Others
The second section of H.B. 606 provides qualified immunity to any “person” sued for causing harm by exposure to, or the transmission or contraction of, the coronaviruses causing COVID-19. “Persons” include, among other things, individuals, schools, for-profit and non-profit entities, governmental entities, religious entities, and state institutions of higher education.
However, such persons enjoy no immunity if it is established that the exposure to, or the transmission or contraction of, the virus was caused “by reckless conduct or intentional misconduct or willful and wanton misconduct on the part of the person against whom the action was brought.”
Significantly, H.B. 606 provides a presumption that government orders, recommendations, and guidelines related to COVID-19 are not admissible as evidence that a duty of care, a new cause of action, or a substantive legal right has been established.
Limitations on Class Action Litigation
H.B. 606 also prohibits class action litigation against health care providers rendering services during a disaster or emergency in those circumstances when immunity does not apply, such as in the case of a finding of reckless disregard. H.B. 606 also limits class action cases against the broader list of potential defendants encompassed in the definition of “person” in cases where immunity does not apply, such as in the case of reckless conduct or intentional misconduct. These prohibitions on class action litigation apply to class actions alleging liability for damages for injury, death, or loss to person or property in a civil cause of action for damages.
Contact any member of Taft’s COVID-19 Task Force for further discussion.
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