Law & the Courts

Liability Protection amid the Uncertainty and Risks of COVID-19

Social distancing decals at a Ralphs Kroger grocery store in Los Angeles, Calif., March 30, 2020. (Lucy Nicholson/Reuters)
As our nation begins to reopen, Congress must shield medical professionals and businesses from frivolous, costly lawsuits.

If we have learned anything about COVID-19, it is that we are surprised every day by new advice on how the coronavirus spreads, its impact on our bodies, preventions, and treatments. The incredibly fluid development of knowledge about the pandemic elevates the risk that decisions we make concerning our own behavior will turn out to be wrong — and, in some cases, dangerous to us and to others.

Last month, former senator Blanche Lincoln and I wrote about the need to protect doctors and nurses from lawsuits related to very difficult decisions they make in treating COVID-19 patients. Trial lawyers are already soliciting plaintiffs so they can profit from these challenging and vulnerable times, and those on the front lines should not be made to pay the price. So we called on Congress to enact targeted liability protections for those fighting the battle in hospitals, nursing homes, and doctors’ offices.

Congress has previously granted similar liability protections. Passed in 1997, the Volunteer Protection Act shields Americans who help their neighbors in a crisis from legal liability. The 2005 Public Readiness and Emergency Preparedness Act also grants tort immunity to manufacturers, distributors, and others providing medical treatment to the victims of epidemics and acts of terror.

Now that our nation is emerging from COVID-19 lockdowns, Congress must also limit the legal exposure of employers and organizations who follow guidelines to protect workers and customers. It’s inevitable that some people will become infected, but firms should not be sued out of existence for good-faith efforts that are not 100 percent effective against a virus that is 100 percent unpredictable. As we try to return to some aspects of normal life, we can’t allow ambulance-chasers to bring lawsuits that will crush our struggling businesses.

Every business is struggling to adopt procedures to protect its customers from harm and itself from liability. And in a world saturated with social media, that struggle extends to our nation’s online-communications platforms. Twitter, Facebook, and Google have made changes to their content-moderation standards out of fear that they could be blamed — and sued — if people get sick based on user posts or videos that encourage potentially harmful behavior.

Recently, Facebook removed several user posts encouraging violations of certain states’ lockdown rules. While Facebook’s community standards have always prohibited misinformation that contributes to the risk of physical harm, the social-media giant has now announced that it is “consulting with WHO, CDC, and other health authorities to assess claims that may be false and likely to cause physical harm, such as increasing the likelihood that they contract or spread COVID-19.” YouTube has removed several user-created videos and ads that promoted ingesting bleach and other quack COVID cures that could be dangerous or even deadly. And well-known conservatives have run afoul of Twitter’s COVID-misinformation policy.

Despite the best intentions to prevent people from harm, social-media moderation of COVID-related content has become a flash point for conservatives who believe these companies moderate conservative content more harshly than progressive posts. Conservatives are outraged that social-media platforms would remove a user post inviting people to assemble and protest against COVID lockdown policies. I support the major social-media platforms’ commitment to free expression within responsible standards that are applied equally, but they are playing with fire if they appear to pick sides in the raging controversy over our nation’s COVID response and economic lockdowns. They do not have the expertise or the credibility to make these decisions. It is better for them to allow Americans the freedom to air our COVID disagreements on social media.

But they are much less likely to do that if they face serious liability risks. If some user posts advice or a video advocating risky behavior, we can’t then turn around and blame the social-media platform for failing to block the post. And we especially can’t let trial attorneys exploit the actions of social-media companies’ users to create a lawsuit jamboree.

So that makes three kinds of COVID-liability protection this Congress and administration need to quickly enact: protection for medical professionals, protection for employers and businesses, and protection for the communications platforms where we debate how Americans should live and work amid this deadly pandemic. At such a time of widespread uncertainty and risk, our nation deserves nothing less.

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