Ohio's COVID-19 Immunity Law Is Now in Effect: What H.B. 606 Means for Families Who Lost Someone in a Hospital or Nursing Home

Published December 29, 2020 · New Laws

This year, many Ohio families said goodbye to a parent or grandparent through a window, over a phone, or not at all. Some of those families now have serious questions about the care their loved one received in a hospital or nursing home. A new state law that took effect on December 16, 2020 will shape how those questions can be answered in court.

House Bill 606 of the 133rd General Assembly was signed by the Governor on September 14, 2020. It gives health care providers, including hospitals and nursing homes, a temporary and qualified immunity from civil lawsuits for care given during the pandemic. "Qualified" is the important word. The law does not close the courthouse door to every family. This article explains what it does and does not do, based on the bill's text and the Legislative Service Commission's analysis.

The time period the law covers

The immunity provisions apply from March 9, 2020, the date the Governor declared the COVID-19 emergency, through September 30, 2021. That means the law reaches back to cover care given in the spring and summer of this year, even though it took effect only this month.

Immunity for health care providers

The first part of the law protects a long list of health care providers: physicians, nurses, nurse aides, pharmacists, EMTs, home health agencies, hospice programs, and facilities. The bill defines "facility" to include hospitals, residential care facilities, and long-term care facilities, which under Ohio law include nursing homes and homes for the aging.

During the emergency, these providers are generally not liable in a civil lawsuit for injury or death arising from:

• their acts or omissions in providing, withholding, or withdrawing health care services in response to the emergency;
• their decisions about providing, withholding, or withdrawing those services; or
• their compliance with an executive order or a director's order issued in response to the emergency.

A separate provision protects providers who were unable to treat, diagnose, or test a patient because of a state or local health order.

The exceptions that matter to families

The immunity does not apply to conduct that amounts to a reckless disregard for the consequences, so as to affect the life or health of a patient, or to intentional, willful, or wanton misconduct. The law defines reckless disregard as conduct by which a provider, with heedless indifference to the consequences, disregards a substantial and unjustifiable risk that the conduct is likely to cause an unreasonable risk of injury or death.

Put plainly, ordinary carelessness during the emergency will often be protected. Care that shows a conscious indifference to an obvious risk is not. The immunity also does not cover actions outside a provider's skills, education, or training, unless the provider acted in good faith because of a lack of resources caused by the emergency.

The law also states that it does not create a new cause of action against providers, and that it does not affect a provider's legal duty to comply with other state laws and rules.

Immunity for exposure to the virus

A second part of the law applies to everyone, not just health care providers. From March 9, 2020 through September 30, 2021, a person or business generally cannot be sued for injury or death caused by exposure to, or transmission or contraction of, the virus that causes COVID-19. The exception is when the exposure, transmission, or contraction was caused by reckless conduct or by intentional, willful, or wanton misconduct.

The law also provides that government orders, recommendations, and guidelines issued during the emergency do not create a legal duty of care, and that they are presumed not to be admissible as evidence that a duty existed. In practical terms, a family cannot rely on a health order alone to prove what a facility was required to do.

No class actions

When the immunity does not apply, the law bars class actions against health care providers and for exposure claims. Each family's case must be brought on its own.

What families can still do

The law makes some cases harder. It does not erase them. Depending on the facts, a family may still have a claim where the evidence shows, for example:

• reckless conduct, such as ignoring obvious signs of distress or failing to provide basic care for long periods;
• willful or wanton misconduct;
• intentional wrongdoing, such as falsifying records; or
• harm that was not a result of, or a response to, the emergency.

Each of those questions depends on the facts, and the facts are in the records. Our earlier post on requesting hospital and nursing home records explains how families can get them. Our pages on nursing home wrongful death and medical malpractice wrongful death describe how these cases are investigated, and our guide chapter on damages explains what a family may recover when a claim succeeds.

The deadline has not changed

H.B. 606 does not extend the time to file. Under R.C. 2125.02(D)(1), a wrongful death action generally must be filed within two years after the death. For a death this spring, that means the spring of 2022. Building a case that can meet the reckless disregard standard takes time, so families should not wait until the deadline is near. Our chapter on deadlines explains the rule.