On July 8, 2020, Mississippi Governor Tate Reeves signed into law Senate Bill No. 3049, the “Mississippi Back-to-Business Liability Assurance and Health Care Emergency Response Liability Protection Act,” legislation designed to provide broad protections from civil lawsuits for various COVID-19 – related activities. The following are a few of the more notable features of this important legislation:
Immunity for Exposure to COVID-19
The Act provides immunity for any “person” (defined to include individuals, the state and its political subdivisions, associations, educational entities, for-profit or nonprofit entities, religious, and charitable organizations) or an owner/lessee/occupant of a premises from civil damages for injuries or death resulting from or related to actual, alleged, or potential exposure to COVID-19. In order to qualify for this immunity the defendant must be able to show that she attempted “in good faith to follow applicable public health guidance…” The bill also extends this immunity to persons acting “in the time before applicable public health guidance was available.”
Protections for Health Care Professionals and Facilities
SB 3049 also extends immunity from suit to health care professionals and health care facilities for “acts or omissions while providing health care services related to a COVID-19 state of emergency.” Immunity takes effect with the declaration of the emergency and extends through any renewals and for up to one year after the emergency. Activities covered by this exemption include:
- “any health care services performed related to a COVID-19 state of emergency,” including “screening, assessing, diagnosing or treating persons” in relation to the emergency or in support of the emergency;
- “delaying or cancelling nonurgent or elective dental, medical or surgical procedures, or altering the diagnosing or treatment of any person” in response to the emergency or public health guidelines issued;
- diagnosing or treating persons “outside the normal scope of the health care professional’s license or practice;”
- using equipment or supplies outside of a product’s normal intended use;
- prescribing, administering, or dispensing a pharmaceutical for off-label use to treat patients in relation to the emergency;
- testing performed outside the premises of a health care facility; and
- acts of omissions caused by a lack of staffing, facilities, equipment, supplies, or other resources.
Health care professionals are broadly defined in the Act to cover just about any person who is licensed, registered, permitted, or certified to provide health care services. The definition also covers volunteers working at the direction of the Department of Health or the Mississippi Emergency Management Agency.
The Act also provides immunity from lawsuits for any person who “designs, manufactures, labels, sells, distributes, or donates” a broad range of “qualified product[s]” in response to the emergency. Products covered include personal protective equipment, medical devices, equipment, supplies “used or modified for an unapproved use,” and off-label uses of medications to treat COVID-19 or prevent its spread. Tests to diagnose the disease or immunity to COVID-19, approved or submitted to the FDA for approval, are also covered. Protection also extends to persons who supply PPE or disinfecting/cleaning supplies “outside the ordinary course of the person’s business….”
The Exception to the Rule
A plaintiff who is able to show to the judge or jury “by clear and convincing evidence” that a defendant acted with “actual malice or willful, intentional misconduct” can overcome any of the immunities provided in the Act.
Timing Is Everything
The Act is retroactively effective to March 14, 2020, and extends until one (1) year after the end of the emergency. However, protections extend in perpetuity for acts, omissions, or injuries that occur while the Act is in effect. All lawsuits for alleged COVID-19 – related injuries must be brought no later than two (2) years after the cause of action accrues. A full copy of the bill is available on the Mississippi Legislature’s website, accessible through this link: http://billstatus.ls.state.ms.us/documents/2020/pdf/SB/3000-3099/SB3049SG.pdf