Now that the new COVID Liability bill is law in South Carolina, what does it mean for our state’s businesses?
Michael Burney: Welcome to The Legal Bench. I’m Michael Burney, Director of Business Development for Collins and Lacy Law Firm in Columbia, South Carolina. Collins and Lacy attorney and shareholder Claude Prevost is joined by a special guest, so let’s get right to the discussion.
Claude Prevost: Well on this edition of The Legal Bench we have Attorney Charles Usry with us this morning. Charles is a lawyer with the firm of Rikard & Protopapas here in Columbia. He’s a graduate from Wofford College, which is very important, graduate of USC School of Law and he practices personal injury, wrongful death, medical malpractice, nursing home abuse and neglect, and insurance bad faith. Charles we’re glad to have you here with us this morning. Usually you and I talk about BBQ and good dogs, but today we’re going to talk about this new COVID law that’s been past recently in South Carolina. We appreciate you coming on today.
Charles Usry: Thanks Claude. I appreciate you having me on the podcast this morning. I am going to be putting some BBQ on the smoker this weekend for July 4th, either ribs or a Boston butt, I haven’t decided which one yet. But, I appreciate you having me and I’m happy to be here talking about COVID liability in light of Governor McMaster’s new Bill that’s just been past.
CP: That’s right, so the new law is called the South Carolina COVID 19 Liability Immunity Act. From our different seats at the Bar, folks can view this law differently and maybe we can talk a little bit about that this morning. Generally, it looks like it’s aimed to protect businesses. Tell me your aspect or your view on that.
CU: Yeah, it is. It’s definitely a pro-business Bill and you can read about that in Governor McMaster’s release regarding the Bill. It looks like this applies to basically all businesses in South Carolina. From my perspective, I handle mostly medical malpractice cases, cases involving nursing home neglect, injuries in assisted living facilities, and things like that, and so obviously the COVID-19 pandemic has generated a lot of discussion within the legal community about liability particularly in the healthcare context. I think that this Bill, it’s going to provide some extra layer of protection for hospitals, nursing homes, and all businesses. I’m not sure that there are going to be very many cases that are filed though. From our perspective, these cases are going to be very difficult because you know in any medical malpractice or nursing home case you have to prove the standard of care and you would also have to prove a standard of care with respect to cases involving any other business. So, plaintiff lawyers generally struggle with that because humans have been around for over a million years and as far as we know there was nobody knew anything about COVID until March of 2020, and so how do you establish a standard of care in a personal injury case involving COVID-19 for something that just appeared within the past 18 months or so. I understand why businesses are concerned with liability but you know as a plaintiff’s lawyer, I think these cases are difficult and I’m not saying that there are not instances where a case will be justified, but I do think they would be very very difficult and this Bill obviously is going to make it even more difficult to prove your case.
CP: Has the plaintiff’s bar thought about how you’d go about actually proving that an individual actually contracted COVID-19 from a specific business or hospital. That seems to be maybe a hill that would be difficult to climb.
CU: Well, and I think that’s the toughest issue in the case is causation. Infection cases are really really difficult just for that reason. You can’t go back in time and discover when someone contracted an infection in every single case. It’s very very difficult to establish that and particularly with COVID which is so contagious and it’s easily transmissible and it can be transmitted through particles in the air. It’s really really hard to prove that element of your case, causation.
CP: What are some things from your perspective that individuals, the public, can do to protect themselves or navigate through this new law. For example, documenting situations or keeping good records, besides being careful and healthy.
CU: I think the Bill captures the spirit of what government officials have been telling us over the past 18 months or so in the sense that it basically says that if you reasonably comply with state authorities recommendations then you’re going to be immuned from liability. As long as you’re doing what DHEC tells you to do, as long as you’re doing what the CDC tells you to do, then you should be okay, and quite frankly it makes sense, it makes perfect sense to me because this is a brand new thing and it’s something we’ve never dealt with.
CP: Part of your practice is insurance bad faith and before we started the podcast you and I were talking about what policies may or may not include coverage for COVID-19 related injury. Could you elaborate on that?
CU: When the pandemic first started a lot of plaintiff lawyers got excited about the prospect of filing claims for business interruption, because a lot of insurance policies do include some type of coverage for business interruption. And, of course, businesses were shutdown for several months after this thing started and so the damages for those types of claims are astronomical and the potential risk for insurance companies are astronomical. What we discovered is we started to investigate those business interruption policies is the insurance industry several years ago recognized that this was going to be a risk of potential major risk down the road and I think maybe around the time we had the bird flu in Asia, the epidemic over there, they inserted virus exclusions into their CGL policies and so with respect to business interruption claims there are some insurers that did not insert that inclusion but the vast majority of them did and you know that exclusion is pretty clear. It’s called the virus exclusion and it pretty clearly says there is no coverage for any kind of pandemic or any kind of virus. That same exclusion also applies for the most part to personal injury claims. There’s just not much coverage available for these types of cases.
CP: And perhaps the lack of coverage could impact the number of suits or claims that are filed with regard or related to COVID-19.
CU: Right, you know, I have not taken on any of these claims. I hadn’t seen any business interruption type claims where the insurance policy does not have this virus exclusion. But, there are, like I said, there are some of them out there and there’s some fortunate business owners and fortunate plaintiff lawyers who have valid business interruption claims.
CP: Have you seen any DJ actions regarding any of these coverage disputes?
CU: I’ve read about some. I haven’t really dealt into them too much. I know that there are fights throughout the country with respect to whether or not the virus exclusion applies and things of that nature the policies that I’ve looked at are all pretty clear and they say there’s no coverage for any kind of pandemic or virus.
CP: So in South Carolina right now, we have some new laws that are hopefully help to balance public policy and public health concerns and it remains to be seen whether or not an individual could bring a COVID claim or COVID related injury claim against a business or hospital as the law stands and as the policies are written today, right?
CU: You can bring a claim. I was reading through a complaint a couple of weeks ago that I think the case has legs and it was the cruks of that claim was not just the fact that someone contracted COVID-19 in a healthcare facility. I think that is a very very difficult case to establish. You cant’t just say I got COVID and it’s your fault. I think that’s an almost impossible case to prove. But, in this particular case what was alleged was the facility that the plaintiff was in was aware that there was a COVID outbreak among staff members within that healthcare facility and they kept that knowledge, they withheld that knowledge from a patient who was admitted to the facility and they did not inform the patient of the coronavirus outbreak within the facility. She was discharged. Several of her family members then contracted coronavirus who lived in the household with her and so it’s a little bit easier to establish causation under those circumstances and several of her family members were hospitalized and I think that in those circumstances I could see that being a valid claim. It’s not medical malpractice. It’s a simple failure to inform your patient that they’ve been exposed to COVID and then a failure to test the patient before sending the patient back home to an environment where they’re in close proximity to their lovedones and I can see liability potentially under those circumstances.
CP: In this new law there are immunity exclusions and it sounds based on the facts that you’ve relayed that under Section 4 of the new law perhaps immunity would not apply to that business because that seems like a wilfull or intentional misconduct possibly or allegedly by withholding that information.
CU: I think that you could potentially convince a jury that it’s grossly negligent and that’s really a standard that you’re held to as a healthcare facility is gross negligence. That’s the lowest burden of proof that you have is gross negligence and obviously it goes up from there to recklessness, willfullness, and intentional misconduct. But that’s a pretty, that particular case, that’s a pretty simple easy thing to understand. You just, if you’re a healthcare provider and you know that nurses in your facility have treated your patient I feel like you’ve got an obligation to make sure that they know that, to test them, and to notify them that they’ve been exposed. It’s just a very basic thing. And so I think that could potentially be a grounds for gross negligence, for sure.
CP: Charles, thank you again for coming on this morning. Charles Usry is with the law firm of Rikard & Protopapas here in Columbia and we appreciate your time and insight this morning.
CU: Thank you Claude.
MB: For the latest business news of interest to South Carolina businesses, join us right here for the next episode of The Legal Bench.