• High Burden of Proof Established for COVID-19 Exposure, Medical, and Products Liability Actions

    High Burden of Proof Established for COVID-19 Exposure, Medical, and Products Liability Actions

    Posted: 25 May 2021 07:45 AM PDT

    covid19

    Covid-19 liability protections for businesses in Missouri become law effective August 28, 2021. The Missouri House voted to pass Missouri Senate Bill 51 in the final minutes of the 2021 legislative session.  The law establishes provisions related to COVID-19 exposure liability actions, COVID-19 medical liability actions, and COVID-19 products liability actions that will expire August 28, 2025.

    COVID-19 Exposure Liability

    Under Senate Bill 51, no business, service, activity, or accommodation will be liable in any COVID-19 exposure action, unless it is proven by “clear and convincing evidence” that “recklessness or willful misconduct” caused an actual exposure to COVID-19 resulting in personal injury.
    • “Recklessness” is defined as “a conscious, voluntary act or omission in reckless disregard of a legal duty and the consequences to another party.”
    • “Willful misconduct” is defined as “an act or omission that is taken intentionally to achieve a wrongful purpose or in disregard of a known or obvious risk that is so great as to make it highly probable that the harm will outweigh the benefit.”
    While we do not know how broadly the courts will interpret these terms, taking actions to prevent the spread of COVID-19, such as requiring mask-wearing, hand sanitizing, and social distancing, could all be helpful in defending a COVID-19 exposure case.  As for vaccinations, the law clearly states, that businesses are not required to establish a policy that requires or mandates vaccination or proof of vaccination to avoid COVID-19 exposure liability.

    The new law allows for the presumption that an individual assumes personal risk when the business clearly posts the following message near its entrance:

    “WARNING: Under Missouri law, any individual entering the premises or engaging the services of the business waives all civil liability against the individual or entity for any damages based on inherent risks associated with an exposure or potential exposure to COVID-19, except for recklessness or willful misconduct.”

    The threat of COVID-19 exposure litigation has been hanging over Missouri employers since the onset of the pandemic.  This new law should offer Missouri employers greater confidence moving forward as they enter the “new normal” of running a business in a post-COVID-19 world.

    The deadline for filing a COVID-19 exposure lawsuit is two years from the date of the claimed exposure.
      

    COVID-19 Medical Liability

    The new law provides similar protections for healthcare providers, requiring proof that personal injury was caused by recklessness or willful misconduct.  “COVID-19 medical liability action” is defined broadly and includes any civil action:
    1. Brought by a person who suffered personal injury, or a representative of a person who suffered personal injury;
    2. Brought against a health care provider; and
    3. Alleging any harm, damage, breach, or tort resulting in the personal injury alleged to have been caused by, arising out of, or related to a health care provider’s act or omission in the course of arranging for or providing COVID-19 related health care services if such health care provider’s decisions or activities with respect to such person are impacted as a result of COVID-19.
    According to the new law, an elective procedure “delayed with good cause” is not reckless or willful misconduct.
    The deadline for filing a COVID-19 medical liability action is one year from “the date of the discovery of the alleged harm, damage, breach, or tort unless tolled for proof of fraud, intentional concealment, or the presence of a foreign body.”
      

    COVID-19 Products Liability  

    A “COVID-19 products liability action” is defined as a personal injury action brought against a business that designs, manufactures, imports, distributes, labels, packages, sells, leases or donates any “pandemic or epidemic product, drug, biological, device or component to combat COVID-19” (excluding vaccines and gene therapy).

    In such an action, the injured party must prove by clear and convincing evidence that the defendant was reckless or engaged in willful misconduct and that the personal injury was caused by the alleged recklessness or willful misconduct.  The liability protection only applies if the product was used as treatment for or to protect against COVID-19.  It is also important to note that this law applies to covered products, regardless of whether they were donated, sold, or distributed in any other way by or in partnership with federal, state, or local public health officials or the private sector.

    The deadline for filing a COVID-19 products liability action is two years from “the date of the alleged harm, damage, breach, or tort” unless circumstances of fraud or intentional concealment exist which would toll the statute of limitations.
    Click here to read Senate Bill 51 in its entirety.

    For additional COVID-19 related information, go to our Coronavirus/COVID-19 Resource Center.

    Posted by Attorney Katherine M. Flett. Flett is a member of the litigation team whose primary focus is on assisting clients in insurance defense, business litigation, employment law, and bankruptcy matters.


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