Medical malpractice lawsuits are typically a last resort for a family who has experienced the devastating and unnecessary loss of a loved one. As Americans adapted to challenges of the COVID-19 pandemic, perhaps no one was more vulnerable than the residents of nursing homes and other long-term care facilities, whose family members were unable to visit as a result of health and safety protocols.
But a proposed bill before the Missouri Legislature, which seeks to protect small businesses from lawsuits related to COVID-19 damages, could also extend sweeping protections and blanket immunity to nursing homes and other health care facilities where the virus claimed thousands of lives.
Continue reading to learn more about Missouri Senate Bill 51 and the possible legal implications for Missourians if this bill is passed into law*.
What is the Missouri COVID Liability Bill?
At the start of the 2021 legislative session, Missouri Governor Mike Parson said protecting the state’s struggling small businesses from frivolous lawsuits related to COVID-19 was a top priority. Senate Bill 51 was introduced to begin the process of formalizing this protection — but the broad language of the bill and its limitations on medical liability action are troubling.
Section 537.1010 of the bill reads:
A health care provider, as defined in the act, shall not be liable in a COVID-19 medical liability action, as defined in the act, unless the plaintiff can prove recklessness or willful misconduct by the health care provider and that the personal injury was caused by such recklessness or willful misconduct.
The bill also sets the statute of limitations to bring forth a lawsuit at one year from the date of loss or damage. The statute of limitations for a typical medical malpractice case in the state of Missouri is two years.
If passed, this bill would go into effect on August 28, 2021, and is set to expire four years after the effective date.
Unprecedented Legal Immunity for Missouri Health Care Providers
Throughout the pandemic, our healthcare professionals and front-line workers have gone above and beyond the call of duty to help fight the Coronavirus and keep our communities safe. This has put incredible strain on workers in every profession and forced us to adapt to new challenges quickly. But the healthcare oath to “do no harm” must be upheld even in the most challenging of circumstances.
Many nursing homes and other long-term care facilities have been closed to visitors since March 2020. As a result, families with an elderly loved one do not have the same ability to advocate for their needs and ensure they are receiving adequate care from the nursing staff. This put vulnerable residents at risk of receiving insufficient care from providers who were overworked and exhausted.
For example, a 69-year-old Kansas City-area man was not sent to the hospital from his nursing home until his bedsores were so extensive that maggots were found inside of one. According to Fox4 KC, he died shortly afterwards.
The types of facilities who could be protected from COVID-19 medical malpractice lawsuits under Missouri SB51 include:
- Hospitals
- Surgical centers
- Long-term care facilities
- Specialists, such as dentists, optometrists, and podiatrists
- Home health care companies
- Employers or agents of any health care services entity
Read the full text and summary text of SB51 here.
Why the Bill’s Broad Language of Legal Immunity is Problematic
If Missouri Senate Bill 51 is passed into law*, there are three potentially problematic outcomes:
- There is less time to file a lawsuit for COVID-related damages suffered by an individual or their family member.
- The standard for “COVID-related” damages is so broad, it can have no relation to COVID patients.
- A plaintiff must now prove recklessness or willful misconduct as opposed to negligence.
To put it simply, SB51 lays the legal framework for healthcare providers to use COVID-19 as a justifiable reason for delivering medical care that fails to meet the standard of care.
The broad language of this bill could grant health care providers unprecedented legal immunity and severely limit a person’s ability to bring a cause of action against someone who caused harm to only the most egregious and unthinkable conduct. Fortunately, if SB51 or similar legislation is passed into law, it would most likely not be retroactive and the terms of this bill would not be used in cases involving a lawsuit that was filed before the effective date.
Padberg Appelbaum Knepper is Fighting for Vulnerable Missourians
Our team of St. Louis medical malpractice attorneys are uniquely positioned to investigate and try complex medical malpractice cases. Joined by Kelly Casey, a registered nurse with more than 15 years of clinical and management experience, we have successfully recovered millions of dollars for clients.
If you or a loved one experienced complications resulting from insufficient health care during the COVID-19 pandemic, contact us today for a free and confidential consultation.
*Approved by the Senate in February 2021, SB51 was voted down by the Missouri House Rules-Legislative Oversight Committee on Monday, April 26. However, COVID liability protections are expected to make progress as legislators continue to debate similar bills.