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The difference between liberal people with legal training and pretty much everybody else is that liberal lawyers—or progressive lawyers or whatever you want to call them—understand that civil lawsuits are a key form of regulation. Not only that, they’re usually the only kind of regulation that wealthy business owners respect. Everybody else acts like civil lawsuits are nuisances dreamed up by greedy ambulance chasers looking to profit off other people’s pain.
People love to rag on civil litigators, especially “tort” lawyers who seek monetary redress for injuries and death. It’s all fun and games and dead lawyer jokes—until they fall down a rickety escalator the city can’t be bothered to repair. Or their local industry spices up their drinking water with mercury. Or their plane falls out of the sky despite the reams of internal manufacturer memos warning, “This model exhibits a tendency to fall out of the sky.” When bad things happen, people stop making jokes and start making Facebook posts asking if anybody knows a good lawyer.
To me, “legal liability” is the answer to many of our social ills. Liability for gun manufactures would make mass shootings less common. Liability for local and state police departments would make cops less trigger-happy. And liability for employers would make them a lot less eager to risk the health and safety of their workers and customers in a rush to “reopen” the economy.
The regulatory effectiveness of civil lawsuits is the reason it’s not surprising that Republicans, led by Senate majority leader Mitch McConnell, are working hard to protect businesses from any sort of legal liability associated with forcing their employees back to work during the coronavirus pandemic. Preventing lawsuits against employers is a critical step towards putting profits over people’s lives.
McConnell has “insisted” that the next stimulus package will include legal immunity for businesses that open back up. He told Politico, “The next pandemic coming will be the lawsuit pandemic in the wake of this one. So we need to prevent that now when we have the opportunity to do it.” It’s important to understand what McConnell is proposing here: He’s saying that he will withhold aid money to state and local governments fighting the Covid-19 pandemic if the package does not include legal giveaways to protect businesses from the justice system. People have a right to sue. McConnell is not only trying to take that right away; he’s willing to hold public relief money hostage in order to do it.
Speaker of the House Nancy Pelosi has taken the opposite view. She’s told reporters, “Especially now, we have every reason to protect our workers and our patients in all of this. So we would not be inclined to be supporting any immunity from liability “
This is no partisan sideshow. The question of whether businesses can be sued for putting people at risk will define the extent to which businesses will put people at risk. If businesses are granted full legal immunity from private lawsuits, they can pretty much ignore public health guidance from experts and governments. They can treat social distancing as a mere suggestion. They can force sick people to come to work and not even tell their coworkers or their customers that they’re forcing sick people to come to work.
If, in contrast, businesses can be sued by employees who get sick on the clock, then businesses with competent legal counsel will be cautious about reopening until the health of their workers can be protected. They will provide testing for workers. They will be more likely to abide by the best practices suggested by experts, because “we did everything Doctor Anthony Fauci told us to do” will be one of their best defenses in court. The threat of a lawsuit is unlikely to keep businesses closed, but that threat is likely to make businesses less casual about people’s lives.
This should be a relatively easy fight for Democrats to win at the moment. “Immunity for businesses that get people sick” isn’t exactly a catchy rallying cry. But Republicans have a ringer on their side: health care providers. McConnell is trying to tie immunity for businesses that might get people sick with immunity for health care providers that are trying to save sick people.
Even in the best of times, “medical malpractice” lawsuits are challenging for liberal lawyers to defend. Society has a soft spot for doctors, and there is a deep belief that doctors are trying their best. Even when doctors screw up egregiously, suing them often looks like an ungrateful way to repay a person who ostensibly tried to help you. On top of that, associations of doctors and health care providers have spent a lot of time, advertising dollars, and lobbying efforts convincing people that medical malpractice lawsuits drive up the costs of health care for everybody. As if suing a drunk doctor who left his shot glass in your stomach is why Grandma can’t afford her pills.
During the pandemic, doctors and nurses and the entire health care system are being called on to make heroic sacrifices. They’re putting their physical health, as well as their mental health, on the line to save as many people as possible. Slapping these people with a lawsuit, should any of them make a “mistake” born from overwork or lack of resources, is just wrong.
But we can’t let Republicans hide behind these heroes as the party shovels out privileges and immunities to their business cronies. In reality, the legal system does not often punish people, especially health care workers, who try their best, even when they make good-faith errors. Liability attaches to people who fail to act in good faith or are reckless in their duties.
The importance of this debate, and the pitfalls of adopting a Republican frame around the issues, can be seen clearly when we look at what’s happening with nursing homes. Nursing homes have been epicenters for disease and death during this pandemic. Almost 70 percent of nursing homes in the country are run by for-profit corporations. Nursing homes are a business, even though people sometimes forget that.
Some of these facilities are trying their best under impossible circumstances. Still others would be doing better if the government provided them with the resources they’re begging for. And still others seem to have been run in an entirely negligent fashion and should absolutely catch a lawsuit at the earliest opportunity.
There is nuance here and, left to its own devices, the civil litigation system is actually pretty good at handling nuance. Looking at things on a “case-by-case basis” is literally what civil courts do. But that nuance is being overrun by zealous state governments. Already, six states have granted nursing homes immunity from coronavirus lawsuits, while another six have provided immunity to health care workers, which nursing homes will argue extends to them once the lawsuits start.
One of the states granting that kind of immunity is New Jersey, the site of the most disturbing nursing home–related death scene yet reported. Seventeen dead bodies were found piled in a morgue meant to hold four at the Andover Subacute and Rehabilitation Center. To think that this facility would have blanket immunity from a lawsuit—and the kind of public investigation that accompanies a lawsuit—shocks the conscience.
If McConnell gets his way, it won’t simply be for-profit nursing homes (or for-profit prisons or for-profit hospitals) that are allowed to operate with impunity and immunity. It will be the wider array of Republican-aligned business interests that receive a “Get Out of Scrutiny Free” card from GOP lawmakers. Hotels and resorts and cruise ships and airlines that get travelers sick will be immune. Schools and universities that restart classes but do not provide testing for students or instructors will be immune. And, most likely, cable news networks that spread lies and disinformation about the coronavirus and tell their viewers to ignore public health warnings will be immune from legal liability, too.
McConnell is trying to give corporations a vaccine against Covid-19, while leaving the people unprotected. This is a fight Democrats must win.