We’d better hope COVID-19 doesn’t kill all the lawyers

OPINION: Solutions to pandemic challenges have to involve some consideration of cost — and liability. That’s going to be an issue in Ontario when it comes to long-term care
By Matt Gurney - Published on Oct 22, 2020
The Ontario government announced legislation this week that would provide so-called good-faith immunity from liability for pandemic-related illness and death. (iStock/benedek)

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Well, for someone who has nothing nice to say about lawyers, you certainly have plenty of them around.”

“They're like nuclear warheads. They have theirs, so I have mine. Once you use them, they f**k up everything.” — Other People’s Money

Hopefully, the above quote from the 1991 Danny DeVito comedy doesn’t offend too many lawyers — I love you guys, honest. But I’ve been thinking about that line a lot over these last few months, as the debate over proper, warranted public-health restrictions during the pandemic has intensified.

Debate is good. It is entirely natural for the public to have strong views regarding which restrictions are warranted and which should be loosened. It’s equally essential that public-health experts have input so that our medical response to this crisis doesn’t become a popularity contest. Our political leaders have to make very difficult choices that balance competing agendas: the understandable desire of the public to return to normal, the need of workers to be employed, the fear of business owners that they might lose everything, and, of course, the imperative of saving lives and protecting the health-care system.

But we never talk about the lawyers. And the lawyers are a really important part of this.

Many of our debates over our pandemic responses exist in strange little bubbles of make-believe. One bubble of make-believe is the Do Whatever the Public-Health Experts Say bubble, where the medical advice is the only consideration that matters, it is enacted into policy instantaneously, and compliance is a steady 100 per cent. This, to put it mildly, is bonkers. There’s the opposite bubble, which I’ll call the Personal Responsibility bubble, which seems to assume that everyone is extremely well-informed about the pandemic and will reliably make the smartest possible choice, effortlessly nailing a perfect balance of personal contentment and social responsibility.

The reality, of course, is closer to this: we live in a bubble where political leaders do their best to balance a huge number of completely irreconcilable agendas — all of which are filtered through their own party’s ideological and political imperatives — often while stressed out and sleep-deprived. They get some calls right, totally blow others, and muddle through on the rest. There are few absolutes in the real world, which may explain why people find such comfort in their make-believe bubbles.

And a part of the real world that seems to be consistently ignored is the role of legal liability. We can all scream and shout at one another about what metric is appropriate to permit any given business to reopen, but it’s just wasted oxygen. Even if you can convince the politician to reopen a class of business — say, dance studios, just to pick an example out of thin air — you’re not going to get anywhere until you also convince the guys who insure the dance studio.

Thus far, this hasn’t seemed to be a major problem, at least relative to all the other major economic shocks we’ve had to endure. There have been reports of insurance disruptions for personal travel insurance, for instance, but businesses seem to have been able to function even during the pandemic by complying with public-health guidelines. But while it may seem as if the pandemic has dragged on forever, it’s important to recall that it’s been only nine months and change since we first started hearing about some weird new sickness in Wuhan. In public-policy terms, we are just at the very, very beginning of what may well be a long battle with COVID-19, and it is absolutely certain that we’ll be living in a long post-pandemic era when the virus is ultimately, somehow, brought under control. What the long-term changes will be to the insurance industry, to concepts of risk, and to business models that have to adjust to both are impossible to guess at now. But they’ll be significant, and it’s hard to imagine that premiums won’t go up as the lessons of the pandemic are absorbed. Lawsuits, too, will be inevitable, and will drive up the costs of the premiums even more.

Indeed, we are already seeing some real-world implications of this. Earlier this week, the Ontario government announced legislation that would provide so-called good-faith immunity from liability for pandemic-related illness and death. This could apply broadly throughout the economy, but one of the major sectors that would benefit would be long-term-care providers. With more than 2,000 deaths directly attributed to COVID-19 in the province’s LTCs, plus many more people whose lives were severely affected, there’s an obvious case to be made that the LTCs should spend the rest of time fighting off lawsuits — no doubt that’s why leaders in Ontario’s LTC community were calling for exactly this kind of legislation.

Good-faith immunity is not total, blanket immunity. Egregious failures, abuse, and neglect would still, in theory, be cause for legal action. But it would prevent a facility from being sued for things that the courts conclude were reasonably beyond its control, inevitable consequences of the pandemic. It sounds simple when you say it like that, but imagine how much bitterness and heartbreak will be caught up in those lawsuits.

I noted above that political leadership often involves choosing from a menu of bad options. This is a classic example. As I’ve written here often, Ontario’s LTC system was a mess even before COVID-19 came along. This was well-known and largely ignored. There is no doubt at all that some of the known dysfunction within the system — particularly around staffing levels — contributed to deaths and suffering during the pandemic. It leaves a bitter taste indeed to consider that companies that ran antiquated, under-staffed facilities will get a pass from litigation, the imperfect but go-to means the public has for enforcing accountability. It will feel like bad guys getting away with bad things.

But, again, this is reality, and the reality is grim: These facilities can operate only if they have insurance, and if they cannot obtain or renew their coverage policies because of a tsunami of lawsuits, what happens then? Do facilities shut down, or does the government have to develop some insurance-of-last resort for facilities that cannot afford their policies? Or, conversely, for facilities that could afford their policies only by dramatically increasing their fees, which would only further compound the existing challenges in the system that we all knew about in the first place!

This is the kind of nitty gritty people don’t like to talk about. We prefer simpler narratives about complex issues: shut down the whole economy to crush the virus versus let it rip and we’ll get to herd immunity. We like to pretend that politicians who don’t find the perfect balance are blinded by ideology or simply shills for some special interest or another. Life’s more complicated. And if your “solution” to the challenge of the day doesn’t include at least some concept of how it’ll be paid for and who’ll cover off the liability risk, it’s not much of a solution at all.

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