Pritzker’s executive orders may face future court challenges
The Illinois Civil Justice League (ICJL) is asking the Illinois General Assembly to consider providing legislative support to Governor Pritzker’s recent executive order that exempts health care workers and others from certain civil liability during a pending or actual disaster while under contract or direction from the government. They are also recommending that legislators study the recommendations put forth by the American Tort Reform Association (ATRA) when considering legislative action.
According to Executive Order 2020-19, hospitals, clinics, community-integrated living facilities, community mental health centers and others cannot be sued “for any injury or death alleged to have been caused by any act or omission by the Health Care Facility, which injury or death occurred at a time when a Health Care Facility was engaged in the course of rendering assistance to the State by providing health care services in response to the COVID-19 outbreak.”
“We applaud Governor Pritzker and his efforts to protect those on the front lines in the fight against this deadly virus from civil liability. He has done the right thing by these heroes; however, we are concerned that once this crisis has passed, plaintiffs’ lawyers and judges will try to invalidate his executive order,” according to John Pastuovic, president of the ICJL. “This type of executive action has not been tested in court, and we fully expect plaintiffs’ lawyers to mount a challenge. If they succeed, our health care providers and facilities will find themselves under attack by an outbreak of lawsuits. New York recognized this potential problem and swiftly enacted legislation to codify their governor’s action to protect health care providers from liability. We are recommending that the Illinois General Assembly do the same,” he said.
ICJL’s recommendation is consistent with guidelines provided by ATRA last week in their white paper titled “Responding to the Coming Lawsuit Surge: Policy Prescriptions for addressing COVID-19 Tort Litigation.”
According to ATRA’s president Tiger Joyce, trial lawyers already are filing lawsuits against businesses providing products or services in the wake of the coronavirus pandemic. It will be months, if not years before these lawsuits go to trial, and much will be forgotten in that time.
ATRA outlined the following policy prescriptions to address COVID-19 liability, including legislation:
• Limiting the liability of businesses that design, manufacture, sell, or donate protective equipment, medical devices, drugs, or other products for use by health care providers and facilities (and possibly the general public) in response to a declared public health emergency
• Allowing health care providers greater discretion to make decisions about medical care without the fear of liability during a pandemic or other health emergency
• Prohibiting lawyers from suing employers on behalf of individuals who did not develop COVID-19, were asymptomatic, or experienced common flu-like symptoms
The full white paper, “Responding to the Coming Lawsuit Surge: Policy Prescriptions for Addressing COVID-19 Tort Litigation,” may be viewed online at www.atra.org.