At the onset of the COVID-19 pandemic, legal practitioners anticipated a surge of pandemic-related class actions arising in the health care sector. Daily headlines noted an ever-increasing number of confirmed COVID-19 cases in hospitals and assisted living facilities, alarming shortages of personal protective equipment (commonly known as PPE), inadequate medical staffing and potential lapses in patient care. But that surge has not materialized.

This surprising development is attributable, in part, to the many new state initiatives shielding health care providers from civil liability and suppressing related class action litigation during the pandemic.

A New COVID-19 Defense for the Health Care Industry

To date, at least 28 states and the District of Columbia have enacted executive orders or passed legislation granting some type of immunity to health care workers and care facilities related to the pandemic. These jurisdictions include Alabama, Alaska, Arizona, Arkansas, Connecticut, the District of Columbia, Georgia, Hawaii, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Mississippi, Nevada, New Jersey, New York, North Carolina, Oklahoma, Pennsylvania, Rhode Island, Utah, Vermont, Virginia, Wisconsin and Wyoming.

Potential claimants disproportionately reside in these jurisdictions. As of publication, they are home to more than one million confirmed cases of the novel coronavirus, accounting for almost 70% of all confirmed cases nationwide. Notably, four of these states alone—New York, New Jersey, Illinois and Massachusetts—account for nearly 35% of all cases in the United States.

Although the scope of COVID-19-related immunity differs across jurisdictions, certain general trends are apparent.

Broad Immunity for Civil Claims

States' efforts to react quickly in the face of the pandemic's unknown scope and severity often resulted in broadly worded immunity covering, in some instances, virtually all activities related to COVID-19 health care. For instance, New York amended Section 3082 of its Public Health Law on April 6 to extend immunity to health care facilities "from any liability, civil or criminal, for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services" if done in "good faith" and related to COVID-19.

Additionally, some states have expressly barred claims relating to insufficient resources, such as PPE or staffing. For example, Mississippi's Executive Order 1471, signed April 10, notes that health care facilities are not liable for "acts or omissions undertaken because of a lack of resources … that otherwise would have been required in the absence of the COVID-19 pandemic."

Liability Remains for Egregious Conduct

Despite typically broad grants of immunity, these new COVID-19 defenses are not absolute. Across all states, immunity does not cover egregious conduct, defined variously, among other things, as gross negligence, recklessness, willful or wanton misconduct, or criminal activity.

Plaintiffs attorneys in the few health care-related class actions filed to date have thus asserted claims for gross negligence or other egregious misconduct in an apparent attempt to overcome the COVID-19 immunity defense. For example, a complaint filed May 18 on behalf of a putative class of nursing home residents at Andover Subacute Rehabilitation Center in New Jersey alleges that the facility failed "to monitor outside visitors to the facilities," and provide sufficient PPE to housekeepers, therapists and nursing assistants. Plaintiffs allege these failures were "grossly reckless, willful, and wanton," resulting in the deaths of more than 50 residents from COVID-19. In response, on June 3, the facility asserted, among other defenses, that its COVID-related immunity under New Jersey law barred the plaintiff's claims. While the outcome is unknown, other facilities hit hard by COVID-19 will undoubtedly assert any applicable COVID-19 defenses to counter their class action claims as well.

Even if the plaintiffs in these cases can allege sufficiently egregious conduct to overcome a COVID-19 defense, class certification may be an uphill battle because evaluating whether a particular class member's claim is barred by COVID-19 immunity will typically be an individualized question—i.e., whether there was gross negligence, recklessness, willful or wanton misconduct, or criminal activity—will typically require case-by-case consideration, rather than class treatment.

Immunity Duration Is Uncertain

In 23 jurisdictions, immunity provisions will expire automatically at the end of the declared emergency, unless repealed earlier. In Arizona, Mississippi, Rhode Island and Vermont, executive orders provide immunity through a fixed date, subject to further extension. Wisconsin Statute Chapter 895.4801 combines these approaches; extending immunity to 60 days after the state of emergency is lifted. Adding another layer of complexity, some jurisdictions have tolled statutes of limitation to compensate for court closures and other delays caused by stay-at-home orders. For instance, on May 22, the Maryland Court of Appeals issued an Administrative Order tolling the statute of limitations for all cases equal to the length of closure, plus an additional 15 days.

Looking forward, a surge of class action claims against health care providers is unlikely to materialize before states revoke or end these immunity provisions. Health care providers should be mindful, however, that evolving circumstances and each jurisdiction's response could affect the scope and duration of applicable COVID-19 defenses. Additionally, providers could still be liable for acts that predate emergency declarations or that arise after their expiration. Despite this uncertainty, health care providers should take comfort in the near term that many likely face reduced exposure from COVID-19 claims for the duration of their jurisdictions' emergency orders, except for egregious acts.

Holly Loiseau is a partner in Washington, D.C., David Singh is a partner in Silicon Valley, Carl Duffield is counsel in Washington, D.C., and John Haigh is an associate in Washington, D.C. All are members of the global litigation department at Weil, Gotshal & Manges.