Provisions Related to Civil Tort Liability

Included in the recently enacted CARES Act are provisions that limit civil liability.  Those provisions relate to certain issues involving the health care industry and are specific to the COVID-19 pandemic.

The legislation provides liability immunity to entities or persons who manufacture, test, distribute, prescribe or administer, in any way, “respiratory protection devices” during the public health crisis period. This provision is an expansion of an existing statute — The Public Service Health Act — which already provides liability immunity to manufacturers and sellers of certain essential medical devices during a public health crisis.

The CARES Act also provides liability immunity for injuries caused by, arising out of, relating to, or resulting from the administration or use by an individual of a respiratory protection device. An exception to the grant of immunity does exist for willful misconduct.  However, the vast majority of personal injury tort claims related to respiratory devices during the COVID-19 pandemic would likely be precluded by the CARES Act.

This new federal legislation also provides liability immunity to volunteer health care workers. This provision is also subject to a broadly worded exception.  It exempts claims alleging reckless conduct or gross negligence, which would remain actionable.

Finally, to prevent price gouging, the legislation also requires that prices for COVID-19 diagnostic tests be publicized on a public website, which, if violated, could result in a maximum civil penalty of $300 a day.