Businesses and essential services operating during the unprecedented coronavirus pandemic fear a wave of litigation for COVID-19 personal injury claims. Across the U.S., COVID-19 cases have already been filed in courts. These concern plaintiffs who feel that the defendants failed to warn them of the presence of an outbreak or did not take reasonable steps to prevent the spread of the virus on their premises.
The legal theory behind most personal injury claims is negligence, and the plaintiff needs to prove that the defendant did not take reasonable precautions to prevent personal injury or harm. With the novel coronavirus, most cases involve negligence that led to the plaintiff contracting the virus. This either led to the development of severe symptoms, but in some cases, it led to the death of a family member.
The potential for liability, if individuals become sick or die, are serious for businesses, health care facilities, nursing homes, and cruise ships. Most people take precautions to prevent transmission seriously. However, in certain cases, plaintiffs try to prove that sufficient precautions were not taken by the defendant. This can lead to a ruling of a public nuisance.
COVID-19 Claims Against Employers and Workplace Exposure
Companies with employees were among the first to face COVID-19 personal injury claims in courts. The first wave of employers who were targeted on behalf of employees or their families included two main groups who remained open during the lockdowns to best serve the public. These were retail organizations and manufacturers. Both types of businesses employ large numbers of people. Those working in retail are exposed to the public during their workday; whereas those in production work on production floors and offices, often in proximity to each other.
In most states, workers' compensation statutes limit employee ability to induce a civil lawsuit against their employer for tort damages. Injured employees are typically limited to a statutory amount, determined by an administrative process.
People working in health care, including first responders, are covered by worker's compensation if they contract COVID-19 during their job. Other employees do not face such an elevated risk and are usually considered equally exposed to the virus within and without their workplace.
Some states consider police officers, ambulance workers, firefighters, and others with jobs protecting public safety as eligible for worker's compensation. In California, any essential worker infected with COVID-19 gets worker's compensation benefits.
Employees who cannot receive worker's compensation, particularly in situations where the employee's injury was the result of intentional or grossly negligent conduct by their employer, can pursue personal injury claims against their employer.
Are Remote and Stay-at-Home Workers Eligible for Compensation?
Worker's compensation for remote workers covers the medical expenses of an employee if they are injured during their employment, whether it's at home or work.
The worker would have to prove that the injury occurred while they were working for the benefit of their employer, the action or activity that caused the injury was required by their employer, and they had the approval of their employer to work remotely.
COVID-19 Claims Against Healthcare Facilities
Healthcare facilities can be sued for medical malpractice if a patient is exposed to COVID-19 through their negligence. Plaintiffs in these types of claims should know that these have difficult procedural requirements. This necessitates the advice and help of an experienced personal injury attorney. It is imperative to prove how the defendant acted in an incompetent way. In some states, health care workers are protected from liability for ordinary negligence by newly enacted laws.
COVID-19 Claims Against Restaurants
Food safety is important and illnesses such as hepatitis A and E. coli are easier to pinpoint to a certain source because they are transmitted to food from a contaminated source. These cases can be tough to litigate, but possible. However, with the coronavirus, this may prove more difficult because it is an airborne virus, but it can also linger on door handles, surfaces, etc.
If a plaintiff can prove causation, then they could have a cause to claim against a restaurant, especially if the restaurant has not followed health guidelines. These include social distancing, the wearing of masks, sanitizing procedures for all surfaces and cutlery, using disposable items wherever possible, discouraging sharing, etc. However, they would have to prove the virus was picked up at that specific restaurant, and not through other daily activities.
COVID-19 Cruise Ship Liability
Contracting COVID-19 on a cruise ship is easier to trace, and there have been many cases where whole cruise ships have had to be quarantined. Passengers who felt the cruise ship they were on failed to take reasonable measures to protect their safety, can seek liability from a cruise ship company. One example is if crew members failed to identify passengers infected with the virus, or they didn't take measures to separate infected passengers from those that were healthy.
Usually, the purchase of a cruise ticket substitutes a contract that imposes restrictions on potential claims, including a ban on class actions. It is often unsure if the ban can be enforced and these types of liability cases can be complicated, but not impossible.
COVID-19 Nursing Home Negligence
The senior population is most vulnerable to developing severe symptoms from exposure to the coronavirus, and nursing homes are particularly inclined to have a rapid spread of any infectious disease. Infection control in nursing homes is an issue that has been causing concern for some time now, even before the recent coronavirus pandemic.
Even though many had been cited for the problems found, some failed to implement the basic protocols. This had devastating consequences during the early days of the pandemic, and long-term care facilities initially recorded a high number of deaths.
Even though 15 states granted nursing homes and long-term care facilities protection from liability, they are mostly shielded from liability for ordinary negligence for harm caused by the coronavirus. They are not protected from intentional misconduct and gross negligence liability, sometimes hard cases to prove.
These types of facilities may also be protected by the same laws that shield health workers from ordinary negligence liability during COVID-19.
California is not included in the states that have granted protection to nursing home negligence, but plaintiffs still need to show that the nursing home staff took inadequate safety measures to protect them from contracting the coronavirus. A nursing home may be liable if:
- It did not quarantine sick staff members or residents
- Areas of the nursing home were not cleaned and disinfected
- They did not take measures to inform other residents of the risks
Personal injury lawyers understand that specific circumstances make each case different.
Victim's Rights for Intentional Transmission
Any person who intentionally spreads an infectious disease such as HIV, Ebola, SARS, or COVID-19 can be prosecuted. Even states that have no specific statute for communicable diseases have other criminal laws that can be applied in cases of intentional or reckless spreading of diseases. Prosecutors can also charge people with quarantine violations when emergency public health orders are in place.
Besides criminal charges for intentionally spreading a communicable disease like the coronavirus, people can also face a lawsuit. Winning a lawsuit for intentional transmission can be tricky unless there is enough evidence to prove the intention.
Will insurance companies try to deny personal injury claims because of COVID-19?
Pending personal injury claims during the pandemic have been affected in many ways. Claimants have felt increased pressure to settle their cases from insurers, and others have seen court delays that are causing endless frustration.
These pending personal injury claims have been made worse by a loss of income for many. Some have been forced to slow down or stop their insurance payments. Even though interactions with lawyers are mostly carried out remotely, personal injury lawyers are still determined to ensure their clients receive the compensation they deserve.
Moving forward, it is expected that insurance companies will be forced to secure their feasibility by lowering the amounts they offer as compensation. This will make it more difficult for out of court settlements to be negotiated, if the victims feel that they are being under-compensated, they will most likely have let them go to trial.
Another problem that has developed because of COVID-19 is that many defendants are not insured. This is because they have ceased paying due to a slowdown in business. Others may have been forced to file for bankruptcy. This makes it more difficult for plaintiffs to get settlements for their cases. Judgment awards may also not be met.
Finally, maximum compensation in personal injury cases is usually determined by medical documentation for treatment received to prove the nature and costs of the injuries. Even with the difficulties presented by the coronavirus pandemic, all victims of personal injury claims should continue to follow safety precautions at hospitals, but not neglect getting their treatment if possible.
MOET Law – Your Personal Injury Lawyers
Whether you have been involved in an accident or feel that reckless and negligent behavior led to you contracting the novel coronavirus, then you must seek the compensation you deserve. At MOET Law Group we specialize in personal injury claims and can help you navigate the difficult terrain we are navigating right now.
We have been fully operational throughout the COVID-19 pandemic with ongoing and new cases. Our team is available to respond to your questions.