Sen. Lisa Baker (R-20) responded to Governor Tom Wolf’s Nov. 30 veto of the liability assistance legislation (HB 1737) that included provisions to head off a potential wave of lawsuits aimed at health care providers and businesses in the wake of the pandemic.
In a statement released Monday, Baker said, “Governor Wolf has again demonstrated either a lack of understanding or a lack of sympathy for the severe challenges that community groups, vital institutions, service providers, and employers face in operating during a worsening pandemic without a predictable end in sight.
“This measure did not offer any sort of protection for those who were grossly negligent or who acted in bad faith. Rather, it was aimed at helping those who tried to follow the confusing and ever changing state and federal guidelines regarding COVID and to ensure that struggling enterprises and facilities would not have their chances for survival washed out by a wave of lesser litigation.”
The governor released a message regarding his veto stating that the legislation provided “broad, overreaching immunity from civil liability during the current pandemic.”
He went on to say that protections against liability for emergency and disaster services activities taken by health care practitioners was provided in his May 6 executive order. Wolf said the bill approved by the legislature significantly expanded those protections to various entities. “Shielding entities from liability in such a broad fashion as provided under this bill invites the potential for carelessness and a disregard for public safety,” Wolf said.
In the veto message, the governor also said that immunity protections for businesses “need to be paired with worker protections, including paid sick leave for employees.”
“At a time when the COVID-19 virus is spreading rapidly, we need to take measure to ensure compliance with public health orders and improve safety practices.”
Upon the Senate’s passage of the bill in mid-November, Baker, who authored several key components of the bill package, explained that complete immunity was not provided for anyone: “The measure simply ensures that if people or entities follow public health directives, they will not be held responsible for any harm that allegedly occurred. Health care providers, PPE manufacturers, schools, universities, childcare providers, businesses, nonprofits, and governments would still be responsible for any intentionally wrongful or reckless acts.”
Liability protection was also offered under the proposal for farmers who want to host agritourism events like hayrides, farm tours, and corn mazes. The site must post specific warning signs, and have a signed, written agreement with visitors that they have acknowledged the risk of participating in a particular activity.
Baker responded, “In signing his veto message, Governor Wolf was effectively putting out foreclosure notices for too many small businesses and their workers, on whom our economy recovery should be built.
“This discouraging action seems to look past the culpability of state government, through its failures of oversight or insufficiency in instructions for care providers and patients in long-term care facilities, such as nursing homes and veterans’ homes. The state is protected by sovereign immunity, which means that litigation costs and consequences are pushed onto private operators, to the detriment of services and jobs.”
“When I talk to struggling business owners and nonprofit organizations, they express fear that one lawsuit could be their death sentence,” Baker said. “Those fighting to stay open do not need to incur litigation costs and potentially get hit with judgments on top of all the other pressures and stresses afflicting them.”
“Not a day goes by without news about business closures, layoffs, and permanent job losses,” she added. “If we cannot put a tourniquet on the economic bleeding, the fiscal distress felt by families will deepen and the hill of eventual economic recovery will be steeper,” Baker said.
The Pennsylvania Coalition for Civil Justice Reform’s Executive Director Curt Schroder issued the following statement Monday after Governor Tom Wolf vetoed the bill.
Schroder said, “The General Assembly understood that in the current environment, businesses and health care providers, following government orders and guidelines, should be protected from opportunistic lawsuits. HB 1737 was well considered. The bill was drafted, debated, and passed to protect the heroes of this pandemic, while still holding accountable bad actors engaged in intentional conduct or gross negligence who were not following health orders and guidelines. This reasonable approach is the right approach for Pennsylvania.
“As a result of the Governor’s action, restaurants, stores, hospitals, and others face a bleak outlook for economic recovery. Once the pandemic passes, they will face a barrage of lawsuits second guessing the decisions of those who followed health care guidelines, sanitized their stores and restaurants, and took all of the correct steps to protect the public. Just as businesses, restaurants, health care facilities and others think they have made it through the crisis, the wave of lawsuits to come will prove devastating.”
HB 1737 had also garnered support by LeadingAge PA, a trade association representing more than 370 senior housing, health care, and community services across the state, the Pennsylvania Manufacturer’s Association and the PA Chamber.