Category: Uncategorized

It is early days, yet, so it is difficult to speak with any certainty about COVID-19 litigation.  You can hear me here , earlier in May, speculating that litigation involving employees (including those deemed essential during this time) suing employers for inadequate protections while at work. What else is going on?  I think Richard Dahl sums up the six biggest potential areas for litigation well. Be careful, though, if you think something like the cruise industry is a sitting duck, think again. Factually, these cases are extraordinarily factually complex. And, there is always the Death on the High Seas Act.

Best laugh of the day to see the COVID-19 litigation waiver built into the request for tickets to President Trump's upcoming Oklahoma campaign rally.  Maybe questions about this will activate a long-delayed and well-deserved conversation about such waivers and their place in American life.  We are, in short, waiver happy and the courts, overwhelmingly, have been happy to enforce such waivers. But, are they a good idea?  In the era of Covid-19, will we be seeing such waivers at the door to retail establishments, public transportation, even outdoor and/or socially distanced restaurant dining arrangements?

Here's the Bryan Cave law firm with an overview of what might need to be included in a Covid-19 waiver, even offering some draft language for a Covid-19 waiver. If you match the Trump rally waiver with the proposed language, you will note some significant omissions in the former.  Big takeaways:  such waivers are as yet untested in our courts and will, if and when tested, be interpreted as part of state law.

In light of that, it may be unappreciated genius of a sort to decide to hold this first re-opening campaign rally in Oklahoma.  The Oklahoma Supreme Court has a history of recognizing pre-liability waivers or exculpatory clauses. See, e.g., Schmidt v. United States, 1996 OK 29, 912 P.2d 871; Thomas v. Holliday, 1988 OK 116, 764 P.2d 165, 168, fn. 7, 8.  But certain conditions must be met and waivers found to be in violation of public policy — including violating public health concerns — may not be enforceable. See, e.g., Linda Wright, 2016 WL 4386038, at *3  Significantly, minors cannot waive such rights and parents may not ratify minor waiver of such rights.Holly Wethington v. Swainson, 155 F. Supp. 3d 1173, 1179 (W.D. Okla. 2015)

This could get interesting. Perhaps no issue so nicely frames our current roiling debate over what we owe each other or do not owe each other in Covid-19 mask wearing, quarantining, and social distancing.  What could individual waiver of liability mean if the real purpose of the protections is, overwhelming, to promote public health?

 

 

 

 

 

 

 

 

 

 

 

https://wallethub.com/edu/states-with-best-health-infrastructure-for-coronavirus-pandemic/74483/#ann-marie-marciarille

Here we have it, it all boils down to whether such legislative grants of immunity from liability to nursing homes for Covid-19 related deaths and illness is seen as "a cruel irony that industries that sickened or killed thousands of people because of lack of protection are now demanding it from Congress" or as  a necessary protection of an industry suddenly overwhelmed by a novel disease in the context of limited PPE, limited testing capacity, and changing governmental guidance on appropriate response [remarks, Craig Cornett, Getting Through Coronavirus, Webinar, 5/19/20].

 

I loved Dr. Sean Conley's 5/18/20 Memo outlining how the "shared medical decision making" between him and the President resulted in prescription of Hydroxychooroquine for Covid-19 prevention. Those "numerous discussions" must have been lively.  Sounds like President Trump overrode your advice, Dr. Conley. 

I guess the sorry state of America's nursing homes/ skilled nursing facilities becomes newsworthy when the person harmed is related to Bruce Springsteen's side man. The rest of the time, not so much.

As the conversation about quality of care concerns in nursing homes is only just underway, it can come as no surprise that blanket immunity for the industry (often for a limited pandemic timeframe) is being pushed hard.  After all, hospitals are after it as well. You can hear me, here, talking about hospital based liability issues (COVID-19 Legal Action tab) this past Wednesday.

How bizarre that the Washington Post should choose to discuss the interest some seniors have in making sure they are not left to languish near death or unto death on a ventilator at the same time that fear of abandoning seniors to COVID 19 inevitable fatalities is reported elsewhere as actually moving Presidential campaign polling data.  Both make good points but wouldn't the reporting be better if these reporters actually talked to each other?

Why we won't admit we see seniors as expendable.

"It may be easier to believe that the coronavirus was deliberately unleashed than to accept the harsher truth that we built a world that was prone to it, but not ready for it."

Thank you to Eric E. Johnson of the University of Oklahoma College of Law for putting together a Second Mini-Conference on Coronavirus and Law on April 15, 2020.  Eric was gracious enough to allow me to choose to talk about Acute Care Hospital Bed Supply in the Time of Pandemic.  All of the other participants were gracious enough to listen and ask questions, in turn. I thank them as well. 

I chose acute care hospital bed supply as my topic because of a string of op eds I noted from around the country faulting earlier hospital merger and acquisition policies that, apparently, created the tight supply of acute care hospital beds laid bare by Coronavirus  emergent hospitalizations.  Commentators in Boston, Chicago, New York, and San Francisco all implied that acute care hospital bed supply was too tight, in light of past decisions to allow mergers or acquisitions or closures.  All of this led me to the question of just how tight we want acute care hospital bed supply to be?

Don't look in conventional antitrust law on merger analysis for language on leaving some excess acute care bed supply in the system in preparation for surge or pandemic needs, because you won't find it.  This also made we wonder why we have no way to talk about these things or why we lack the vocabulary to ask these questions.

Practice experience reminds me of a few situations where opponents of mergers had mixed in, along with other grounds, the cry that wringing all the excess acute care bed capacity of the system would leave us ill prepared for another 1918-style flu epidemic or 1908-style earthquake.  Such arguments typically gained little traction, as there was no consensus that surge or pandemic emergency capacity had any role to play in conventional merger analysis's focus on technical and scale efficiency in acute care hospitals and the goal of greater competition by wringing excess supply out of the system. 

But we are humbled now or as humbled as we may be for some time by the incredible surge in demand the leaking stories of people, particularly people who are low income, being sent home with fever, pneumonia, and instructions to self-monitor which turned into instructions to self-monitor unto death.  Is what was formerly seen as excess capacity really idle capacity necessary for pandemic or mass disaster preparation and ought merger analysis take some cognizance of the interest of the acute care hospital bed consuming public in having some flex in the bed supply?

I am still thinking about this.  x-posted: lawgarithmic.com