Sasse Liability Bill Protects Medical ‘Heroes,’ as Fight With Trial Lawyers Nears

April 28, 2020 Updated: April 28, 2020

It will be doctors and nurses on the front lines versus opportunistic trial lawyers when Congress returns to Washington on May 4 and begins consideration of the fifth major CCP virus recovery bill in recent months.

Odds are good that Sen. Ben Sasse (R-Neb.) will be a major player. He told The Epoch Times on April 28 that “ambulance chasers shouldn’t turn a pandemic into a payday.”

“Doctors and nurses around the country have enough to worry about fighting this virus, they shouldn’t have to worry about frivolous lawsuits. My bill would give our doctors and nurses some common-sense liability protections. They’ve got our backs; we ought to have theirs,” he said.

Senate Majority Leader Mitch McConnell (R-Ky.) set the stage April 27 by noting the need for additional legal protections for medical personnel fighting the CCP virus, also known as the novel coronavirus, against costly, time-consuming lawsuits.

“A massive tangle of federal and state laws could easily mean their heroic efforts are met with years of endless lawsuits,” McConnell said, warning against what he called “the biggest trial lawyer bonanza in history.”

McConnell said that while some protections were included in previous recovery legislation, “the brave health care workers battling this virus, and the entrepreneurs who will reopen our economy, deserve strong protections from opportunistic lawsuits. … We will need to expand and strengthen them.”

He was referring to a provision of the Coronavirus Aid, Relief, and Economic Security (CARES) Act that protects manufacturers of N95 medical masks from lawsuits filed by users claiming product failure.

That means a proposal introduced by Sasse is likely to be the major focus of the legislative debate.

“In ERs and ICUs across America, doctors and nurses are writing the playbook as they fight this virus one day at a time. These heroes need a common-sense liability shield so that they don’t have to worry about lawsuits while they’re scrambling to save lives,” Sasse said in a statement accompanying the March 30 introduction of his proposal.

“This legislation gives emergency liability and patent protections to health care professionals who are innovating on the front lines. America is going to beat this virus. Congress needs to make sure that Phase Four legislation protects our doctors and nurses from a plague of lawsuits,” he said.

Democrats in Congress will oppose legislation such as the Sasse proposal as a direct threat to one of their most powerful and dependable special-interest supporters.

More than 97 percent of political contributions by the American Association for Justice (AAJ), formerly known as the American Trial Lawyers Association (ATLA), have gone to Democrats to date in the 2020 campaign, according to OpenSecrets.org.

The percentage has barely changed in every election since 1990, and incumbent Democrats in Congress have always been the primary recipients.

Trial lawyers also account for the bulk of contributions overall that make support by lawyers and law firms the Democratic Party’s second-largest source of contributions.

Not all Democrats do the bidding of trial lawyers, however. Former Sen. Blanche Lincoln of Arkansas joined with former Sen. Rick Santorum of Pennsylvania, a Republican, in a USA Today op-ed last week, observing that:

“While most Americans support efforts to fight this pandemic, a minority of bad actors attempt to take advantage of it. Trial lawyers, who see profit in these challenging and vulnerable times, have begun soliciting for new plaintiffs and suing companies and insurers.”

Sasse’s bill provides protection against liability for medical personnel treating CCP virus victims in three areas of activity, including:

  • Using or modifying a medical device for an unapproved use or indication.
  • Practicing without a license or outside of an area of specialty, if instructed to do so by an individual with such a license or within such an area of specialty.
  • Conducting the testing of, or the provision of treatment to, a patient outside of the premises of standard health care facilities.

Liability worries have caused spiraling health care costs in recent decades as individual and institutional medical care providers faced increasing risks of being sued by trial lawyers in malpractice litigation.

A 2018 study by researchers at Harvard University and Melbourne University estimated such “defensive medicine”—higher malpractice insurance fees and doctors ordering more tests as hedges against being sued—added nearly $47 billion annually to the cost of health care.

The study estimated the total added health care costs that result from medical liability issues to be $55 billion, according to Policy & Medicine.

Contact Mark Tapscott at Mark.Tapscott@epochtimes.nyc