Yesterday, Governor DeWine signed Ohio
House Bill 606 which provides limited immunity to individuals, companies,
schools, governments and non-profits for spreading the MERS, SARS or COVID
virus through September 30, 2021, bars class action lawsuits for these type of
cases, and excludes the admission of evidence of government orders, guidelines
and recommendations to establish a mandatory standard of care. The immunity is lost if “it is established
that the exposure to, or the transmission or contraction of, any of those
viruses or mutations was by reckless conduct or intentional misconduct or
willful or wanton misconduct on the part of the person against whom the action
is brought.” One of the key reasons for the statute is to
enable entities and people to re-open without fear of being bankrupted based on
frequently changing government recommendations if an employee, customer,
student or guest catch a virus. I have
included key provisions of the statute below.
Section 1 applies to healthcare entities. Section 2 applies generally. Section 3 relates to reasons for the statute,
including the changing, contradictory and poorly formed government
recommendations, etc. A specific example
is the early government recommendations against
the general public wearing masks.
SECTION 1. (A) As used in this section:
(42) "Reckless disregard" means, as it applies to a given health care provider rendering health care services, emergency medical services, first-aid treatment, or other emergency professional care, conduct by which, with heedless indifference to the consequences, the health care provider disregards a substantial and unjustifiable risk that the health care provider's conduct is likely to cause, at the time those services or that treatment or care were rendered, an unreasonable risk of injury, death, or loss to person or property.
(46) "Tort action" means a civil action for damages for injury, death, or loss to person or property and includes claims arising under resident or patient bills of rights and contractual claims arising out of statutory or regulatory requirements applicable to health care providers. "Tort action" includes an action on a medical claim.
(B)(1) Subject to division (C)(3) of this section, a health care provider that provides health care services, emergency medical services, first-aid treatment, or other emergency professional care, including the provision of any medication or other medical equipment or product, as a result of or in response to a disaster or emergency is not subject to professional disciplinary action and is not liable in damages to any person or government agency in a tort action for injury, death, or loss to person or property that allegedly arises from any of the following:
(a) An act or omission of the health care provider in the health care provider's provision, withholding, or withdrawal of those services;
(b) Any decision related to the provision, withholding, or withdrawal of those services;
(c) Compliance with an executive order or director's order issued during and in response to the disaster or emergency.
(2) Division (B)(1) of this section does not apply in a tort action if the health care provider's action, omission, decision, or compliance constitutes a reckless disregard for the consequences so as to affect the life or health of the patient or intentional misconduct or willful or wanton misconduct on the part of the person against whom the action is brought.
(3) Division (B)(1) of this section does not apply in a professional disciplinary action if the health care provider's action, omission, decision, or compliance constitutes gross negligence. (4) A health care provider is not subject to professional disciplinary action and is not liable in damages to any person or government agency in a tort action for injury, death, or loss to person or property that allegedly arises because the provider was unable to treat, diagnose, or test the person for any illness, disease, or condition, including the inability to perform any elective procedure, due to an executive or director's order or an order of a board of health of a city or general health district issued in relation to an epidemic or pandemic disease or other public health emergency.
(C)(1) This section does not create a new cause of action or substantive legal right against a health care provider.
(2) This section does not affect any immunities from civil liability or defenses established by another section of the Revised Code or available at common law to which a health care provider maybe entitled in connection with the provision of health care services, emergency medical services, first-aid treatment, or other emergency professional care, including the provision of medication, medical equipment, or other medical product.
(3) This section does not grant an immunity from tort or other civil liability or a professional disciplinary action to a health care provider for actions that are outside the skills, education, and training of the health care provider, unless the health care provider undertakes the action in good faith and in response to a lack of resources caused by a disaster or emergency.
(4) This section does not affect any legal responsibility of a health care provider to comply with any applicable law of this state or rule of an agency of this state.
(5) Division (B) of this section applies only to the provision, withholding, or withdrawal of health care services, emergency medical services, first-aid treatment, or other emergency professional care, including the provision of any medication or other medical equipment or product, decisions related to such services or care, or compliance with an executive order or director's order by a health care provider as a result of or in response to a disaster or emergency and through the duration of the disaster or emergency.
(D) If the immunity described in division (B) of this section does not apply, no class action shall be brought against any health care provider alleging liability for damages for injury, death, or loss to person or property on a cause of action specified in that division.
(E) This section applies from the date of the Governor's Executive Order 2020-01D, issued on March 9, 2020, declaring a state of emergency due to COVID-19, through September 30, 2021, and supersedes section 2305.2311 of the Revised Code during that period.
SECTION 2. (A) No civil action for damages for injury, death, or loss to person or property shall be brought against any person if the cause of action on which the civil action is based, in whole or in part, is that the injury, death, or loss to person or property is caused by the exposure to, or the transmission or contraction of, MERS-CoV, SARS-CoV, or SARS-CoV-2, or any mutation thereof, unless it is established that the exposure to, or the transmission or contraction of, any of those viruses or mutations was by reckless conduct or intentional misconduct or willful or wanton misconduct on the part of the person against whom the action is brought.
(B) A government order, recommendation, or guideline shall neither create nor be construed as creating a duty of care upon any person that may be enforced in a cause of action or that may create a new cause of action or substantive legal right against any person with respect to the matters contained in the government order, recommendation, or guideline. A presumption exists that any such government order, recommendation, or guideline is not admissible as evidence that a duty of care, a new cause of action, or a substantive legal right has been established.
(C) If the immunity described in division (A) of this section does not apply, no class action shall be brought against any person alleging liability for damages for injury, death, or loss to person or property on a cause of action specified in that division.
(D) As used in this section:
(1) "MERS-CoV" means the coronavirus that causes middle east respiratory syndrome.
(2) "Person" has the same meaning as in section 1.59 of the Revised Code and includes a school, a for-profit or nonprofit entity, a governmental entity, a religious entity, or a state institution of higher education.
(3) "Reckless conduct" means conduct by which, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person's conduct is likely to cause an exposure to, or a transmission or contraction of, MERS-CoV, SARS-CoV, or SARS-CoV-2, or any mutation thereof, or is likely to be of a nature that results in an exposure to, or a transmission or contraction of, any of those viruses or mutations. A person is reckless with respect to circumstances in relation to causing an exposure to, or a transmission or contraction of, MERS-CoV, SARS-CoV, or SARS-CoV-2, or any mutation thereof, when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that such circumstances are likely to exist.
(4) "SARS-CoV" means the coronavirus that causes severe acute respiratory syndrome.
(5) "SARS-CoV-2" means the novel coronavirus that causes coronavirus disease 2019 (COVID-19).
(6) "State institution of higher education" has the same meaning as in section 3345.011 of the Revised Code.
(E) This section applies from the date of the Governor's Executive Order 2020-01D, issued on March 9, 2020, declaring a state of emergency due to COVID-19, through September 30, 2021.
SECTION 4. This act applies to acts, omissions, conduct, decisions, or compliance from the date of the Governor's Executive Order 2020-01D, issued on March 9, 2020, declaring a state of emergency due to COVID-19 through September 30, 2021.
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
