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The bill does not prohibit the filing of medical malpractice lawsuits, but it does set strict standards that must be met for a case to succeed. The standards could restrict the number of cases filed, experts said.
Although the bill refers to “coronavirus-related medical liability action,” the definition in the bill for “coronavirus-related health care services” is broad enough that it could apply to cases that were not directly COVID-19 related.
Sen. Chuck Schumer rejected a coronavirus relief bill proposed by Republicans in the Senate, calling it extreme and "a giveaway to corporate interests." Schumer said the proposal focused on protecting businesses, schools and hospitals from liability.
"You know what's in this bill? No medical malpractice suits until 2024, even if they're not COVID-related," said Schumer in a July 28 interview with MSNBC’s Chris Hayes. "What it says is, if a employer—"
"Wait a second, wait a second, wait a second, really?" Hayes asked.
"That's in the bill, yes," Schumer said. "It's in the bill. It's amazing."
Is that true?
PolitiFact examined the bill and asked law professors for their review of it to determine if any aspect of the bill did what Schumer claimed.
What Schumer said was "in the bill" is not actually in the bill. The bill does not explicitly ban the filing of lawsuits until 2024. Language does, however, make cases more difficult to succeed, experts said. Does the bill extend to non-COVID-19 related cases?
"It doesn't seem that it's intended to apply to medical malpractice suits that don't relate to non-COVID-19 related care," said via email Michelle M. Mello, a law professor at Stanford Law School. But certain definitions and wording in the bill support Schumer’s interpretation, she said.
Schumer’s claim is based on a bill introduced by Sen. John Cornyn, R-Texas, that’s part of a package promoted by Senate Majority Leader Mitch McConnell, R-Ky. McConnell has argued that the bill does not provide immunity from lawsuits and that it still allows for accountability for gross negligence and intentional misconduct. The bill would extend to health care services provided from December 2019 to October 2024, or the date when the national emergency over the coronavirus ends.
A spokesperson for Schumer said that while the bill cites "coronavirus-related medical liability action," it also gives a broad definition of what constitutes as "coronavirus-related health care services."
Here’s how the bill defines coronavirus-related health care services:
"the diagnosis, prevention, or treatment of coronavirus;"
"the assessment or care of an individual with a confirmed or suspected case of coronavirus; or"
"the care of any individual who is admitted to, presents to, receives services from, or resides at, a health care provider for any purpose during the period of a federal emergency declaration concerning coronavirus, if such provider’s decisions or activities with respect to such individual are impacted as a result of coronavirus."
The "for any purpose" phrase in that definition "would enable the preemption" of medical malpractice lawsuits even if the health care services are not directly related to COVID-19, said Justin Goodman, a spokesperson for Schumer. "Because the provider can be expected to say that the pandemic impacted their decisions and activities for all services they provided," he said.
Mello, of Stanford Law School, offered this scenario: "Suppose I come to a hospital clinic for chemotherapy, and the hospital is so overwhelmed and distracted with its COVID care and surge preparations that they don't staff the chemo service at normal levels and something important gets missed in my care — the hospital could argue that my injury fits the definition."
The hospital could say that care was suboptimal because it had diverted resources and attention to COVID-19, Mello added.
Drew Brandewie, a spokesperson for Cornyn, argued that the "for any purpose" wording in the bill is irrelevant to Schumer’s claim. "Nothing in the bill, including that provision, preempts or bars a lawsuit from being filed — which is what Sen. Schumer said," Brandewie said.
Law experts said there were provisions in the bill that could reduce the number of suits filed, including a standard for negligence that’s higher than what state laws commonly require.
"The bill only permits liability for the most egregious misconduct," said David C. Vladeck, a law professor at Georgetown Law. Plaintiffs would have to prove that a health care provider intended to hurt them, he said.
In the evidence-gathering process, people seeking to sue must also show that information requested from a health care provider "equals or exceeds the burden or cost" placed on the health care provider. That provision and the one-year limit for filing claims, can also challenge a plaintiff's ability to file claims, experts said.
When Cornyn introduced his bill, he said that as states reopen, health care workers, businesses, and schools faced "a second pandemic of frivolous lawsuits threatening to bankrupt them."
What might be the effect of his bill if it becomes law?
There would be extremely few COVID-19-based medical malpractice lawsuits and nearly zero frivolous ones, said Charles M. Silver, a law professor at the University of Texas at Austin, who has studied medical malpractice litigation in Texas.
"The impact of the bill will be to prevent the few plaintiffs with very strong negligence claims from collecting compensation," Silver said.
Silver disagreed with Cornyn’s premise that health care providers were getting lots of frivolous lawsuits. Medical malpractice lawsuits are expensive and hard to win, even when clients have strong claims, Silver said. "The single most validated finding about medical malpractice litigation is that the system routinely sends victims with valid claims home empty-handed or, at least, under-compensated," Silver said.
Schumer said of a Republican coronavirus relief bill, "You know what’s in this bill? No medical malpractice suits until 2024, even if they’re not COVID related."
Schumer was imprecise and inaccurate describing a provision in the bill.
Despite what Schumer said, the bill does not prohibit the filing of medical malpractice lawsuits. It does set strict standards that must be met for a case to succeed. The standards also could restrict the number of cases filed, experts said.
Regarding the bill's impact on lawsuits not related to COVID-19 care, some experts say the language is broad enough to have a chilling effect on all types of medical malpractice lawsuits.
Schumer’s statement contains an element of truth but ignores critical facts that would give a different impression. We rate it Mostly False.
Sen. John Cornyn’s website, Cornyn Measure Will Protect Health Care Providers, Schools, Charities, and Small Businesses from Frivolous Litigation, July 27, 2020; page archive
Sen. Chuck Schumer MSNBC interview, July 28, 2020
Email interview, Justin Goodman, a spokesperson for Sen. Chuck Schumer, July 30, 2020
Email interview, Drew Brandewie, a spokesperson for Sen. John Cornyn, July 30, 2020
Email interview, Michelle M. Mello, a law professor at Stanford Law School, July 30, 2020
Email interview, Charles M. Silver, a law professor at the University of Texas at Austin, July 30, 2020
Phone interview, David C. Vladeck, a law professor at Georgetown Law, July 31, 2020
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