Ohio's COVID-19 Immunity Law (H.B. 606): What Injured Patients and Families Can Still Sue For

Published September 24, 2020 · New Laws

Since spring, families have been calling our office with a similar story. Mom was in a nursing home, the family could not visit for months, and when they finally saw her she had lost weight, had a pressure wound, or had fallen and broken a hip. Sometimes she contracted COVID-19. Almost always, the family wants to know whether anyone will be held responsible.

On September 14, Governor DeWine signed Amended Substitute House Bill 606, which limits lawsuits connected to the pandemic. The law has not taken effect yet; it is expected to become effective in mid-December. But it reaches back to conduct beginning March 9, 2020, so families need to understand it now. Here is what it does, and, just as important, what it does not do.

Part one: lawsuits over catching COVID-19

Section 2 of the bill says that no civil action for injury, death, or loss may be brought against "any person" if the claim is based, in whole or in part, on exposure to, transmission of, or contraction of the virus that causes COVID-19 (or the related SARS and MERS viruses). "Person" is defined broadly to include businesses, schools, nonprofits, government entities, religious organizations, and state universities.

There is an exception. The bar does not apply if the exposure or transmission was caused by "reckless conduct or intentional misconduct or willful or wanton misconduct." The bill defines reckless conduct as disregarding, with heedless indifference to the consequences, a substantial and unjustifiable risk that the conduct will cause exposure or transmission.

Section 2 also says that government orders, recommendations, and guidelines do not create a legal duty of care, and it creates a presumption that they are not admissible as evidence that a duty exists. It bars class actions on these claims even where the immunity does not apply.

In plain terms: ordinary carelessness that leads to someone catching COVID-19 is not enough. A family must show something more serious, a conscious disregard of a known and substantial risk.

Part two: qualified immunity for health care providers

Section 1 is aimed at health care. It covers a long list of providers, including physicians, nurses, aides, home health agencies, hospice programs, and facilities such as hospitals and long-term care facilities.

It provides that a health care provider that delivers care "as a result of or in response to a disaster or emergency" is not liable for injury or death arising from its acts or omissions in providing, withholding, or withdrawing that care, from decisions about that care, or from complying with an executive or health director's order. A separate provision protects providers who could not treat or test someone, including postponed elective procedures, because of a government order.

The exceptions again matter. The immunity does not apply when the provider's conduct amounts to "a reckless disregard for the consequences so as to affect the life or health of the patient," or to intentional, willful, or wanton misconduct. It also does not protect providers acting outside their skills and training, unless they did so in good faith because the emergency left them without resources. And Section 1(C)(5) limits the protection to care provided as a result of or in response to the disaster or emergency.

What the law does not do

This is the part that gets lost in the headlines. H.B. 606 is a targeted law, not a blanket pardon.

It does not touch ordinary injury claims that have nothing to do with the virus. A car crash, a fall on a broken sidewalk, a dog bite, or a defective product is not a claim about COVID-19 exposure. Section 2 does not apply to it.

It does not, by its terms, cover care that was not "a result of or in response to" the emergency. A resident left in bed for days until a pressure wound reaches the bone, a patient given the wrong medication, a fall caused by an aide who ignored a care plan: these are the same kinds of neglect that existed before March. As I explained in our posts on nursing-home falls and understaffing and hospital bedsores, they are proven with medical records, staffing data, and expert testimony. Providers will argue that the pandemic touched everything they did in 2020. Whether particular care was "in response to" the emergency will be a fact question, and it is one we intend to press.

It does not protect reckless or intentional conduct. A facility that knowingly kept sick staff working without protection, or ignored a resident's obvious decline, may fall within the reckless-disregard exceptions.

It is temporary. Both sections apply to conduct from March 9, 2020 through September 30, 2021. The bill states it is not of a general and permanent nature, and it is not being added to the Revised Code.

What families should do now

If someone you love was hurt or died in a nursing home or hospital this year, these steps matter more under H.B. 606, not less:

• Request the complete medical chart, including nursing notes, medication administration records, and wound-care documentation.
• Write down the timeline: when visits stopped, what staff told you, when you first noticed the injury.
• Keep every communication from the facility, including letters about outbreaks and staffing.
• Do not assume the law bars your claim. Many of the cases we see involve neglect that has nothing to do with the virus.
• Act quickly. Medical claims in Ohio generally carry a one-year limitations period, and evidence about staffing and conditions inside a facility does not stay available for long. Our guide chapter on why you should talk to a lawyer early explains why.

What this means for you

• H.B. 606 was signed September 14, 2020, takes effect in mid-December, and applies to conduct from March 9, 2020 through September 30, 2021.
• Claims based on catching COVID-19 require proof of reckless, intentional, or willful or wanton conduct.
• Health care providers have qualified immunity for care given as a result of or in response to the emergency, with exceptions for reckless disregard and intentional misconduct.
• Falls, medication errors, bedsores, crashes, and other ordinary negligence claims unrelated to the virus are still very much alive. Our wrongful death and personal injury practice handles them.