FILE PA Rep. Torren Ecker

Pennsylvania state Rep. Torren Ecker, R-Abbottstown, speaks  April 5, 2021, on the floor of the House of Representatives. Content Exchange

(The Center Square) – Lawmakers in the Pennsylvania House of Representatives teed up a bill on Monday meant to protect businesses from frivolous personal injury COVID-19 lawsuits.

But the bill is unlikely to become law as Gov. Tom Wolf has said he doesn’t support the measure in its current form. 

It’s a familiar position for the Republican-controlled General Assembly. In November, Wolf vetoed a similar proposal that aimed to shield schools, colleges, day cares, nursing homes and manufacturers from civil liability arising from a COVID-19 exposure that he said was too broad and lacked worker protections.

This time, prime sponsor Rep. Torren Ecker, R-Abbottstown, said his House Bill 605 instead mandates all legal challenges related to COVID-19 exposures enter into arbitration, a mediation process typically reserved for “simple” cases with damages totaling $50,000 or less. The damage threshold wouldn't apply to COVID-19 claims, however.

“We are looking for another approach to provide some predictability and really weed out the frivolous cases and focus on the bad actors,” Ecker told the House Judiciary Committee last month. “What’s important here is that ultimately the cases that are legitimate, where folks aren’t following public health guidance, those cases will go to court.” 

Democrats on the committee expressed doubts that arbitration made sense for wrongful death or catastrophic illness claims that a COVID-19 lawsuit might carry.

“The purpose of arbitration is efficiency – that’s why we do it,” said Rep. Mike Zabel, D-Drexel Hill. “The cases tend to be less complex. They tend to pivot around one or two factual issues and they are ripe for compromise, … and arbitration speeds that process along.”

The committee approved the bill mostly on party lines, with no Democrats in favor and one Republican dissenting. The House amended it on the floor Monday to include long-term care providers among the list of protected businesses.

Ecker described it as “a pretty simple vote” that “is the last hurdle to getting back to normal which is what we want to see.”

“This doesn’t protect those that act intentionally,” he said. “This doesn’t help those that engage in criminal misconduct … or did it their own way.”

Rep. Gerald Mullery, D-Nanticoke, criticized the bill as a solution in search of a problem. He mocked a statement from the long-term care industry that compared trial attorneys to comic book villains coming for the pandemic’s heroic front-line workers.

“You know what they didn’t provide us with? An example of a single case or a single settlement from one of their members,” Mullery said. "Not a single one.”

He also referenced a letter signed by 63 different industry groups that support HB 605 as lacking any proof that the threat of frivolous COVID-19 lawsuits even exists.

“These organizations run the gamut … and they are all concerned about opportunistic lawsuits and the constant threat of being sued,” he said. “But how many cases have they cited? Zero point zero.”

Zach Shamberg, president and CEO of the Pennsylvania Health Care Association, said both the bill that Wolf vetoed and the pending HB 605 represent “fair” and “targeted” liability protections that shield responsible facilities from costly legal challenges.

He said trial attorneys have indeed “emerged from the shadows” after Wolf’s veto with “shameless and opportunistic marketing” directed at families that lost loved ones during the pandemic.

“The state has not conducted any investigations throughout this past year, but trial bar attorneys are eager to, declaring they ‘will work tirelessly to maximize your entitled compensation,” he said. “Opportunistic lawsuits like these will actually cause more harm for our vulnerable seniors as settlements and payouts take dollars away from the bedside and redirect them to the pockets of attorneys – most of them from out-of-state.”

PHCA later told The Center Square that its members continue to see advertisements encouraging lawsuits against their facilities, with some even going as far as calling out providers by name. 

Pennsylvania lacks any punitive damage caps for medical malpractice claims and in 2016, the state ranked second in the nation for total payouts of this type. PHCA also noted cases against providers can be filed within a two year window.

“As Pennsylvania’s leading voice for long-term care providers, workers and the vulnerable residents they serve, we appreciate any and all recognition of the heroic work that has taken place on the front lines of the COVID-19 pandemic," Shamberg said Tuesday. “We’ve called for COVID-19 liability protections before, and we renew that call today. No one should be allowed to profit from the pandemic on the backs of our healthcare heroes.”

The House passed HB 605 on Tuesday on a vote of 107-94. Four Republicans joined all of the chamber's Democratic members in rejecting the measure. It now moves to the Senate for consideration.

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