Much of the pandemic’s massive damage to New Jersey and the U.S. was self-inflicted to slow the spread of coronavirus until medical care could handle the caseload. Now the state and nation are in danger of adding substantially to that harm by allowing endless lawsuits seeking COVID-related damages.
The federal Centers for Disease Control and Prevention has advised for weeks that “in the coming months, most of the U.S. population will be exposed to this virus.” Now lawsuits threaten to turn that natural course of the pandemic into profitable litigation.
Last week two N.J. law firms warned in New Jersey Law Journal commentaries of the coming “plague of litigation” and “deluge” of COVID-19 lawsuits.
Two partners at Schenck Price Smith & King in Florham Park, Morris County, said the long-term-care industry faces years of court battles. A large share of pandemic deaths in New Jersey and other states have been at such facilities, which by their nature host residents at greater risk to the virus.
N.J. officials have been “naming and shaming” operators they’ve decided are the worst offenders. Yet New Jersey didn’t act to isolate and protect nursing home residents after the February-March outbreak in a Kirkland, Washington, nursing home resulted in 37 deaths. Quite the contrary — New Jersey instructed nursing homes in the state that they had to accept COVID-19 patients from hospitals deemed medically stable, with predictably tragic results.
Two partners at Epstein Becker Green in Princeton said the kind of victim compensation fund that performed well after the 9/11 terrorist attacks may not be possible for COVID-19.
For starters, the 9/11 fund still allowed lawsuits, and the pandemic may present such limitless opportunities to seek awards that many litigants would reject such a settlement. The COVID-19 fund would need to be far bigger, with hundreds of thousands of possible lawsuits over those sickened or deceased compared to the more than 3,000 killed in 9/11. And the response to the terrorist attack was characterized by political unity, unlike today.
State and federal legislation should protect businesses and individuals acting in good faith during the pandemic, allowing lawsuits only in cases of gross negligence.
The U.S. Chamber of Commerce recently said companies should be protected if they are following CDC guidance.
Congress should extend the liability protection it gave health-care volunteers to all care providers. New Jersey granted immunity to health care professionals and facilities retroactively from March 9 forward, but it should clarify protections for long-term-care providers, where the state bears much of the responsibility for the wave of cases and deaths.
New Jersey people and businesses are paying an enormous cost financially and in quality of life. Representatives in Trenton and in Congress shouldn’t make them pay more with wasteful litigation.