Bill hiking liability protections for care workers draws Whitmer criticism

Beth LeBlanc
The Detroit News

Legislation headed to the governor's desk would increase liability protections for more health care workers and facilities that lawmakers said faced unprecedented challenges during the COVID-19 pandemic.

But opponents argue the bill ultimately shields insurance companies that should be held accountable for "bad actors" responsible for infection spread and deaths during the pandemic.

The bill, which passed largely along party lines, appears to be headed for a veto by Gov. Gretchen Whitmer, who called it "bad policy" and an attempt to "paper over" the GOP-led Legislature's ongoing attempt to sidestep her emergency powers.

The Blue Angels fly over Henry Ford Hospital in Detroit to honor health care workers on Tuesday, April 12, 2020.

"Immunity should be available in very limited circumstances; it should not be a permanent feature of any emergency, which will only harm the people receiving care," Whitmer spokesman Robert Leddy.

The bill's sponsor, Sen. Michael MacDonald, R-Macomb Township, did not return requests for comment left with his staff. 

The bill was developed after discussions with the health care community to recognize the unprecedented pressures and changing guidance medical personnel faced daily during the pandemic, said MacDonald's chief of staff, Eric Stocker.

"We're hopeful that (Whitmer) will take a look and she'll consider signing it," Stocker said.

Whitmer's declaration of a state of emergency under the 1976 Emergency Management Act provided some liability protections for front line workers. Executive Order 30 added liability protections and was extended under Executive Order 61, but that order was rescinded July 13. 

In addition, a Michigan Court of Claims judge in May ruled that Whitmer didn't have the authority to extend her state of emergency without support of the Legislature under the 1976 law, throwing the effectiveness of those liability protections contained within the law into doubt. Whitmer is appealing the May ruling. 

"The governor put in place liability protections for front-line workers when cases were spiking, and she’s prepared to do so again if necessary," Leddy said.

The Legislature's bill would add language to the 1976 Emergency Management Act specific to the COVID-19 pandemic that would establish expanded liability protections from March 10 through Jan. 1, 2021.

The bill approved by the Legislature would exempt parties from "any act of commission" while providing services "in support of the state's response to the COVID-19 pandemic."

The protections would apply to a broader swath of medical entities, including any health care provider, hospitals, outpatient facilities, nursing homes, hospice or surgical centers. The immunity afforded to health care facilities would extend to supervisors, administrators, executives, board members, employees and volunteers. 

The protections do not extend to instances of gross negligence or willful misconduct. 

Health care providers faced tough decisions, changing science and fluid levels of patient demand while attempting to care for patients at the height of the pandemic, said Adam Carlson, senior director of government and political affairs for the Michigan Health and Hospital Association.

Doctors had to decide whether to prescribe drugs with conflicting science backing them. Some health providers had to turn away patients seeking non-emergency care. And some hospitals dealt with surges of patients, overworked staff and dwindling protective gear. 

Given those circumstance, Carlson said, "the government usually recognizes that in a unique situation like this immunity for people on the front lines is usually needed.”

"Numerous other states have passed either similar legislation or executive orders," he said. "It’s not like Michigan is unique in passing this type of legislation.”

MacDonald said in a Thursday press release the legislation recognizes the difficult decisions medical providers have and will continue to make. 

“During this ongoing crisis, the only consideration our hospitals, doctors and nurses should have is what is best for their patients — not worrying about possible lawsuits," he said. 

The Insurance Alliance of Michigan said the legislation provides extra protections for health care workers and mirrors Whitmer's earlier executive orders. 

The legislation "should be embraced by policymakers in both parties as a way to shield frontline workers putting their lives on the line from unscrupulous lawyers trying to exploit this devastating crisis for financial gain," said Erin McDonough, executive director of the insurance group.

But opponents of the law say it will do more to shield insurance companies than it will front line workers. 

"Nurses don’t pay liability claims; insurance companies do," Rep. Brian Elder, D-Bay City, said Wednesday from the House floor. 

"They know that they have liability now, today," said Elder, a lawyer. "How do we know this? Because this bill provides retroactive immunity, a backdated, blank check started on March 10, 2020 and continuing through Jan. 1, 2021.”

Rep. Gary Howell, R-Deerfield Township, was the lone House Republican to vote against the measure. 

Howell said he's generally opposed to immunity protections that deny people the right to bring a claim but he was especially concerned that the bill would give protection to a nursing home in his district where a supervisor allegedly instructed employees not to wear masks.

That nursing home, Howell said, also accounts for a majority of deaths in Lapeer County.

"Something is severely wrong there," he said. "I don’t know what it is, but I’m not willing to give them a pass on liability.”

The bill's supporters argue that cases, where clear misconduct took place, can still be addressed by the exceptions for gross negligence or willful misconduct. 

But the threshold for gross negligence is nearly an impossible bar to meet under Michigan law, making the exception for those sorts of claims nearly meaningless, said Donna MacKenzie, a trial lawyer and president for the Michigan Association of Justice.

Like Howell, MacKenzie is most concerned with the loophole the bill creates for bad actors within the nursing home industry. 

"What this new bill does is it not only gives immunity, but it gives it until January of 2021, which is totally unnecessary," MacKenzie said. "It's incredibly broad immunity."

The Negligence Law Section of the State Bar of Michigan also opposed the legislation largely because the group historically has opposed laws granting immunity where a judge or jury could instead decide on the merits. 

But the group also had some reservations about the constitutionality of the bill's attempt to apply immunity retroactively. 

"I’m not sure that we’ve ever in the state of Michigan granted retroactive immunity to anybody," said Jim Bradley, chairman for Negligence Law Section for the State Bar of Michigan. 

"We’re concerned about the potential precedent that it sets for other types of immunity," he said.