Most personal injury claims are based on a legal theory called negligence, which means that a person or a business did not use the appropriate care under the circumstances. The person bringing the claim (the plaintiff) must show that they would not have suffered harm if the defendant had acted reasonably. These cases do not typically arise from contracting an infectious disease, such as a flu. It can be hard to prove the precise source of exposure, as well as identifying a specific action by a defendant that showed a lack of reasonable care. However, there may be certain situations in which a patient may bring a negligence claim against a defendant based on contracting the novel coronavirus.
Nursing Home Negligence
Elderly people are especially vulnerable to contracting COVID-19 and developing severe symptoms from it. Many aging Americans live in nursing homes, in which the virus often spreads rapidly. If evidence suggests that a nursing home failed to take reasonable precautions to protect its residents from infections, a resident may be able to sue the nursing home. They would need to show that they contracted COVID-19 due to inadequate safety measures by staff members. These might involve unsanitary conditions that promoted the spread of the disease or an inadequate response to an outbreak in the community. For example, a nursing home might need to quarantine residents and staff, clean and disinfect certain areas, and inform other residents of the risks. Each case is different, and the proper measures will depend on the specific circumstances.
In May 2020, 15 states granted protection to nursing homes and other long-term care facilities against certain types of lawsuits related to the COVID-19 outbreak. These states are Alabama, Arizona, Connecticut, Georgia, Illinois, Kentucky, Massachusetts, Michigan, Mississippi, New Jersey, New York, Nevada, Rhode Island, Vermont, and Wisconsin. The scope of protection varies depending on the state. In general, facilities in these states are shielded from liability for ordinary negligence that caused coronavirus-related harm. They typically are not shielded from liability for gross negligence or intentional misconduct, but these cases are unusual because it tends to be hard to prove these elevated degrees of culpability. Facilities also may be protected under laws that immunize health care providers from liability for ordinary negligence during the COVID-19 outbreak, even if these laws do not mention nursing homes specifically.
If a patient was exposed to COVID-19 through negligence at a hospital, they might be able to bring a medical malpractice claim against the facility. Medical malpractice claims are different from ordinary personal injury cases because they involve a more specific standard of care. In most of these cases, a plaintiff will need to retain an expert who can explain why the defendant did not act as a competent health care provider in the same specialty would have acted in the same situation. Medical malpractice cases typically involve tricky procedural requirements, and a plaintiff should strongly consider retaining an attorney if they are pursuing this type of claim. Some states have enacted laws that immunize health care providers from liability for ordinary negligence related to COVID-19, similar to the laws protecting nursing homes.
Cruise Ship Liability
Some COVID-19 patients contracted the disease while they were traveling on a cruise ship. If this happens, they likely can trace the exposure to their cruise. A passenger might be able to sue the cruise ship company if it failed to take reasonable precautions to protect their safety. For example, if crew members failed to identify infected passengers and separate them from healthy passengers within a reasonable time, a healthy passenger who later contracted COVID-19 might have a claim. The law in cruise ship cases can be complicated, since the contract on the ticket imposes restrictions on potential claims. One of these restrictions is a ban on class actions, although it is unclear whether the ban would be enforced.
An employee likely will not have a personal injury claim based on contracting COVID-19 at their workplace. If an employee works in the health care sector or holds a public safety job, such as a firefighter or a police officer, they likely can recover workers’ compensation benefits. Most other employees may face an uphill battle in claiming workers’ compensation, due to the laws in this area. Read more here about workers’ compensation and possible alternatives.