By Howard Fischer
Twitter: @azcapmedia

PHOENIX — State lawmakers are moving to make it harder for those harmed during a pandemic to sue those whose negligence caused illness, injury or death.

Senate Bill 1377 is being billed by proponents as protecting health care providers, particularly hospitals, who may have found they could not provide care at a certain level because of staff or supply shortages. That includes the inability to conduct elective surgeries.

But the measure given preliminary approval Monday by the state House erects new legal hurdles for lawsuits against any business that claims the damages they caused are related to the pandemic. That, according to foes, will protect employers and business owners from having to be legally responsible for their own negligence.

First, it bars lawsuits unless someone can show there was either gross negligence or willful misconduct. That is a greater burden than current law where the question for jurors is whether there was simple negligence.

That, however, is only part of it.

It also spells out that whoever files suit must prove the case by “clear and convincing evidence.”

Now, a jury decides a case based on the easier-to-prove “preponderance of the evidence” standard, meaning whether it is more likely than not that something amiss occurred.

Rep. David Cook, R-Globe, said the provisions make sense. He focused on language that are designed to immunize health care providers for what happens because of “a lack of staffing, facilities, equipment, supplies or other resources that are attributable to the state of emergency” that would otherwise be provided.

But the legislation does more than shield doctors and hospitals. Any company could seek the same protections.

That bothered Rep. Richard Andrade, D-Glendale.

He said it’s the current standard that employers need to take only reasonable and prudent measures to protect against liability.

“Why does this bill require proof of willful misconduct or gross negligence?” Rep. Andrade asked.

“Why should employers not be liable for failing to take at least ordinary safety precautions?” he continued. “Why should employers not be liable if they commit misconduct or in fact (are) negligent when it comes to the safety of their workers?”

The big losers, said Rep. Andrade, are the “essential workers” who have no choice but to do their jobs. Those include not just health care workers but everyone from those stocking shelves and working checkout counters at grocery stores to the people who drive the trucks and railroad engines delivering needed supplies.

“Employers need to be held liable,” he said. “This bill is stripping away their right to stay healthy and, most importantly, to work in a workplace with safety in mind and safe from getting COVID-19 during this pandemic.”

Rep. Randall Friese, D-Tucson, said he sees this as a license for people to be irresponsible.

Rep. Friese said it would be one thing if the protection against lawsuits was available only to those whose operations follow the guidelines of the Centers for Disease Control and Prevention.

Instead, he said, it provides immunity for those who adopt and implement “reasonable policies related to the public health pandemic,” a term that is not defined in the legislation.

“It seems to me that CDC guidelines are reasonable guidelines and we should be putting that language in the bill,” Rep. Friese said. “If you’re not keeping your workplace in compliance with CDC guidelines, then you shouldn’t get the benefits of the immunity from liability that this bill is proposing.”

And Rep. Diego Rodriguez, D-Phoenix, said the measure would protect “bad actors.”

There’s also the question of whether the measure is legal.

The Arizona Constitution in two separate places guarantees the right of individuals to be able to sue for damages.

House Minority Leader Reginald Bolding, D-Laveen, said the new standards — gross negligence and clear and convincing evidence, taken together — present too high a barrier and effectively eliminate that right to sue.

Before approving the bill, the House did add one provision to the measure that Rep. Tim Dunn, R-Yuma, said is designed to limit the immunity of nursing homes. To escape liability they would have to prove the failure to provide care to someone who was injured or died was a direct result of having to attend to a patient who needed treatment for the pandemic, or “due to limitations in equipment, supplies or staff caused by the pandemic.”

Rep. Dunn said this would address situations like the rape of a comatose woman in a Phoenix nursing home, a rape that resulted in her giving birth. He said those situations should not be legally shielded.

“It is not condoning any kind of abuse or sexual misconduct,” he said.

But Rep. Rodriguez was not so sure. He said the nursing home could argue the pandemic resulted in a shortage of people who would otherwise have been able to supervise this staffer.

SB 1377 is not simply prospective. It covers any incident that occurred since March 10, 2020, when the pandemic declaration was declared. It now requires a final roll-call vote. A nearly identical version of the measure already has been approved by the Senate.