Critics fear COVID-19 liability bills will impact legal claims unrelated to the pandemic

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INDIANAPOLIS – Two proposals are making their way through the state legislature to protect businesses from lawsuits in the wake of the COVID-19 pandemic. After a third reading on the House floor on Wednesday, SB 1 passed out of the House. It now heads back to the Senate for approval again after the House made changes to it.

Critics fear the bills go too far and would create obstacles to legal claims unrelated to COVID-19.

Kenneth “Butch” Burgin was a resident at a nursing home in Owen County until he died unrelated to COVID-19 in November 2020. His family filed a lawsuit against the facility claiming Burgin suffered from poor care, including malnutrition, a fractured nose and pressure sores while he was a patient.

The complaint says Burgin was a resident at the facility for just over two months. It calls his care and treatment at the facility “substandard.”

“Food, water, turning and repositioning. They failed to give those things to Butch and it caused Butch’s premature death,” said Ashley Hadler, trial attorney for the Burgin family.

Hadler fears the language in these proposals will prevent the family from getting any justice. She is urging lawmakers to change the language in these bills, after several amendments have already failed.

“Without having civil litigation to hold somebody accountable for following the rules for healthcare centers, things will continue to fall through the cracks. People who have already been harmed will not be able to get justice,” she said.

State Representative Jerry Torr, R-Carmel, authored HB 1002. He does not have the same interpretation of his bill as Hadler. He believes this will not keep anyone out of the courtroom.

“The bill is very clear that is has to arise out of COVID-19,” he said.

He hopes the proposal will encourage businesses to reopen without fear of being sued because someone is claiming he or she contracted COVID-19 at their facility.

“Business owners had no way of preventing it,” he said. “That is what we are focusing on.”

A nursing home trade group is also supporting the two proposals. Zach Cattell, president of the Indiana Health Care Association, argues the proposals being considered are specifically tailored to address actions that are in response to the pandemic.

“Any alleged acts of negligence that are not in response to the pandemic or for COVID-19 will not be provided the heightened standard being considered under the proposals.  Further, neither proposal will prevent cases from being filed, allowing them to be considered based on the facts of each circumstance,” said Cattell.

Opponents are not convinced and believe the two bills will make a devastating impact on nursing home patients in Indiana who suffered harm during the pandemic.

“While it is being sold as a bill that addresses only COVID19 concerns, here the net effect is going to be that nursing homes are going to be exempt for liability for all injuries they caused by their negligence,” Attorney Jeff Powless said. “By not doing what a reasonable nursing home would do under the circumstance.”

Powless said his office has not filed a single case related to somebody contracting COVID-19. His office is not aware of any office that has filed a lawsuit alleging someone contracted COVID-19 due to negligence.

“What these bills attempt to do is change the standard,” he said. “The nursing homes would no longer be responsible due to their negligence and avoiding the rules they are supposed to follow. It would be an elevated standard such as gross negligence and willful and wanton misconduct.”

After a third reading in the House, SB 1 passed with 72-21 vote. HB 1002 was referred to the Senate earlier this month.

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