SB 72, providing COVID liability protections for both general businesses as well as health care practitioners and facilities was signed into law March 29, 2021. Although both houses of the legislature initially passed separate versions of a liability protection bill, SB 72 is the ultimate vehicle of leadership negotiations. A copy of SB 72 as engrossed can be found here and a detailed summary of the bill’s liability protections are below.
Summary of SB 72:
For claims related to general negligence, the bill requires both a heighted pleading standard of particularity and the filing of an affidavit from a physician attesting that the plaintiff’s injuries were a result of the defendants actions or omissions. A good faith effort to comply with prevailing COVID mitigation standards is an affirmative defense. The court must conduct a preliminary hearing to determine whether, as a matter of law, the plaintiff submitted a compliant affidavit and the complaint was plead with sufficient particularity. The claim must be dismissed if the plaintiff fails to meet either burden. At this hearing the court must also determine whether the defendant’s actions or omissions amount to a good faith effort, such that immunity is conferred. For all claims that proceed beyond the preliminary hearing, the standard of negligence is raised to gross negligence or intentional misconduct, and the evidentiary burden is raised to clear and convincing.
For claims related to health care negligence, no physician affidavit is required, but the heightened pleading standard applies as well as requirement to prove by a preponderance of the evidence that the defendant was grossly negligent. Substantial compliance with current guidelines and the inability to procure protective equipment are affirmative defenses that negate liability.
The bill would take effect upon becoming a law and applies retroactively as to the date the alleged injury occurred, but is not retroactive in regards to current cases that have already been filed. The statute of limitations for COVID claims is limited to one year after the damages occur or one year after the bill becomes law.
