The COVID-19 virus has caused a global pandemic of the likes we have not seen for over 100 years. It will likely be one of the most significant events in our lifetime. This blog post will explore some of the legal issues raised by the responses and failures to respond to sickness and death caused by the disease.
Is the Government Responsible?
When Donald Trump tells Bob Woodward on tape that he knew the virus was deadly in February and then told the world the next day that there was nothing to worry about, are there any legal consequences? Let’s look at some historical cases that will give us insight into the government’s potential responsibility.
The Cases Against Big Tobacco May Offer Us Some Clues
Cigarette manufacturers have been held civilly liable for money damages when they were shown to have known that their products were deadly and when they lied to consumers that cigarettes were safe, even healthy. Manufacturers are, however, different than government officials.
While a smoker may be successful for suing a tobacco company for selling him a dangerous product, which they knew was deadly, government officials are not engaged in that kind of business.
So, government officials like Donald Trump are not likely civilly liable for downplaying or even misleading the public about the risk of a virus. Government officials are also frequently protected by laws granting them immunity from lawsuits. Even some manufacturers, like firearms manufacturers, have been successful in having laws passed to make them legally immune from lawsuits.
On the Other Hand, Consider Agent Orange Litigation
Dow Chemical and other defendants, including the United States Government, have faced thousands of lawsuits and class actions as a result of exposing our soldiers and others to a deadly herbicide during the Vietnam War. Ultimately, a settlement fund was created to compensate victims of exposure. At one point, the fund had some 350 million dollars.
The Government Might Be Blameworthy, But That Does Not Equate to Being Responsible for Monetary Damages
Unlike the herbicide dioxin, aka “Agent Orange,” which has been shown to be lethal and responsible for cancers and other severe diseases, there is no manufacturer of the COVID-19 virus.
So, while Donald Trump may have been reckless in telling the world there was nothing to worry about back in February from the virus, he did not create the virus nor did he spray people with the disease. Dow Chemical can be liable. Donald Trump can be blameworthy, but he and other government officials are not likely responsible to pay monetary damages.
If not the Government, Then Who Might Be Liable and Be Required to Pay Damages to Victims and Survivors of the COVID-19 virus?
Employers Liable to Employees Who Get COVID-19
The workers compensation laws protect employees and provide employees with paid medical expenses, paid sick leave, permanent disability awards and other damages for injuries suffered during the course and scope of employment. So, if a medical doctor or registered nurse contracted the virus while performing work related activities, they may collect money through the workers comp system.
The workers comp system is usually the exclusive remedy for employees who suffer injury or illness during the course and scope of employment. It is a no fault system. Negligence does not need to be shown. However, damages are limited to economic losses and disability based upon a published rating schedule.
Employers Liable to Customers Who Get COVID-19
Imagine if a fast food restaurant failed to create special precautions to protect customers during the pandemic. We can all think of additional precautions which should be required like regular and routine handwashing, sanitization, mask wearing, temperature taking, random testing of workers, etc. Now, if a customer could establish that they contracted the virus from a fast food restaurant that failed to implement reasonable precautions, the customer would likely be able to recover damages for his injuries and reimbursement for his economic losses.
Individuals Who Know They Have the Coronavirus Who Infect Others
At the Law Offices of Barry Zimmerman, we have recovered money for individuals who have been infected with sexually transmitted diseases by a known carrier of the disease. We have also seen individuals with HIV/AIDS who have been criminally prosecuted for assault by means of force likely to cause great bodily injury for spitting on someone during an altercation or during an arrest.
Accordingly, it stands to reason that a person who knows they have COVID-19 may be either civilly liable for damages or criminally punishable if they engaged in activity that infected another with the disease.
Is There Liability for Medical Negligence in Treatment of COVID-19?
Medical practitioners are liable if they fail to use the standard of care customary in the community in which they practice to diagnose, treat, and prevent illness to their patients. Over the years, we have seen cases where a medical practitioner failed to take an X-ray or a mammogram or some other diagnostic procedure that would have revealed a disease in the early stages that could have been prevented from growing into a fatal illness. In these instances, the physician may be liable for monetary damages.
On this same theory, a failure to take a chest X-ray or other diagnostic study of a sick patient’s lungs and chest may be actionable if it can be shown that had such steps been taken, treatment could have been provided to prevent the spread of the virus and prevent further harm.
Is There Liability for Elder Abuse if a Nursing Home Resident Contracts COVID-19?
Similar to claims of medical malpractice, if an elderly person in a nursing home contracts the COVID-19 virus, they may have an action for personal injury damages if the caretakers failed to exercise due care to protect their residents and patients. Read more about my elder law practice here.
What About People Who Get COVID-19 in Prison or Jail?
People who are incarcerated are also among those most vulnerable to contracting and spreading COVID-19. Lawsuits have been filed on behalf of incarcerated persons seeking their release from jail when social distancing is impossible or cannot be enforced. Lawsuits have also been filed on behalf of inmates who have contracted the disease while in custody where jails and law enforcement officials have failed to take adequate steps to protect the inmate population.
Understanding How COVID Cases Will Resolve Comes Down to the Law of Negligence
The idea of a tort or civil wrong based upon a failure to exercise reasonable care has its origins at least as early as the 5th or 6th century. All civil society has had some form of dispute resolution when one human causes damage to another.
In the era of COVID-19 and the current pandemic, if there has been a failure to exercise due care, which results in you or someone close to you contracting the virus, there may be a case based on the law of negligence and related legal principles, such as product liability or workers compensation.
If you or someone close to you think they may have a case, there is no reason not to ask a professional to review the claim. At our Roseville and Auburn, California locations, we have been helping sick and injured individuals for over 3 decades. There is no fee for a consultation. And if we take your case, we only get paid if you recover money. It’s a no brainer.