Ohio Governor Mike DeWine Signs Amended Substitute House Bill 606 Into Law

Markus E. Apelis By Markus E. Apelis

As the nation and the world continue to grapple with formulating an appropriate and effective response to the COVID-19 global health pandemic, the State of Ohiohas enacted a sweeping measure designed to limit legal exposure as a result of the virus and the disease. On September 14, 2020, Ohio Governor Mike DeWine signed into law Amended Substitute House Bill 606, a bill designed to give individuals and employers immunity under state law from civil lawsuits relating to COVID-19.  The Ohio General Assembly found that lawsuits related to COVID-19 exposure were being filed “in the thousands” nationwide, and that Ohio business owners faced uncertainty over potential tort liability as they started to reopen their businesses.  The legislature also determined that a lack of clarity – both in terms of legal precedent as well as (at times, conflicting) public health guidance – necessitated legislative action to make clear the legal duties and exposures that individuals and businesses would face while navigating the ongoing pandemic.

House Bill 606

The legislative solution was simple: granting broad immunity to individuals and business owners during the pandemic situation.  In fact, the new law provides for two distinct types of immunity – one type of immunity specifically for healthcare providers, and another type of immunity generally for individuals and businesses.

This article analyzes the different immunities surrounding House Bill 606 and their impact on potential COVID-19 claims that individuals and employers are bound to face as the pandemic continues.

General Immunity for Individuals and Businesses

Under the new law, individuals and businesses are immune from lawsuits for personal injury, death, or loss to person or property when that loss was caused by exposure to, or transmission or contraction of, certain viruses.  This includes the SARS-CoV-2 novel coronavirus that causes the COVID-19 disease.  It also includes the SARS-CoV and MERS-CoV viruses that cause SARS (Severe Acute Respiratory Syndrome) and MERS (Middle East Respiratory Syndrome), respectively.

The immunity is a qualified immunity, meaning that it is not available if a plaintiff can establish that the exposure, transmission, or contraction was the result of reckless, intentional, willful, or wanton misconduct.  This is similar to many other forms of statutory immunity available under Ohio law, such as the immunity available to employees of political subdivisions, certain first responders, and others.  Unlike the immunity in those other circumstances, however, the new law actually defines what constitutes “reckless conduct.”  Under the new law, reckless conduct means any conduct “by which, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person’s conduct is likely to cause” exposure to, or transmission or contraction of, the viruses.  This definition is very similar to the definitions used in the context of other statutory immunities.

Specific Immunity for Healthcare Providers

Any healthcare provider that provides healthcare services, emergency medical services, first-aid treatment, or other emergency professional care as a result of or in response to a disaster or emergency is immune from professional disciplinary action and from damages in tort claims arising from the provision, withholding, or withdrawal of healthcare provider’s services, any decision related to the provision, withholding, or withdrawal of those services, or compliance with an executive order or Department of Health Order issued during and in response to a disaster or emergency.

As with the general immunity, the specific immunity for healthcare providers does not apply if the healthcare provider’s conduct constitutes a reckless disregard for the consequences so as to affect the life or health of a patient.  The immunity also does not apply if the healthcare provider’s conduct constitutes intentional, willful, or wanton misconduct.  Additionally, the immunity from professional disciplinary action does not apply if the healthcare provider’s conduct constitutes gross negligence.  For tort actions, however, gross negligence would not be enough circumvent the immunity.

Scope of the New Immunity Law and Its Impact on Claims and Litigation

The immunities established in House Bill 606 are broad in terms of the protections that they provide.  The new law, however, also provides additional protections beyond the fundamental grant of immunity.

With respect to duration, the immunities date back to the onset of the pandemic and at least one year into the future.  The immunity is retroactive to March 9, 2020, the date on which Governor DeWine issued an executive order declaring a state of emergency in Ohio related to the COVID-19 pandemic.  The immunity will last until September 30, 2021.

With respect to litigation, the new law prohibits claimants from bringing a class action against individuals or businesses to pursue their claims, even in those circumstances in which the immunities do not apply.  Additionally, the new law makes clear that government orders, recommendations, or guidelines do not create legal duties that are enforceable as part of civil lawsuits.  This public health guidance is also presumptively inadmissible during litigation.

You can view the entire text of the law by clicking here.

Gallagher Sharp continues to monitor this important development, along with other developments relating to the COVID-19 pandemic.  You can discuss the impact of this new law on any pending or future claims or lawsuits with the attorney handling your particular matter or by contacting us.