By JOHN F. BANZHAF. Originally published at ValueWalk.
Verdicts in Coronavirus Law Suits May Soar, But There’s a Remedy; New Medical Studies Suggest That Damages Will Be Much Higher
Q2 2020 hedge fund letters, conferences and more
Companies Are Facing A Wave Of Coronavirus-Related Lawsuits
WASHINGTON, D.C. (August 17, 2020) - Major companies nationwide are facing a wave of law suits by employees who complain that they contracted the Coronavirus because their employer did not follow recommended safety precautions, according to reports in the Wall Street Journal and other media outlets.
Moreover, “companies face a daunting choice of either staying closed and risking bankruptcy, or reopening and risking a business-crippling lawsuit,” says the U.S. Chamber of Commerce, and that risk of ruinous litigation also exists in law suits by residents in nursing homes, students in colleges and universities, passengers on planes, trains, and buses, and elsewhere.
To make matters even worse, the amount of damages likely to be awarded is almost certain to soar as a result of new studies, says public interest law professor John Banzhaf, who has been called “The Law Professor Who Masterminded Litigation Against the Tobacco Industry,” “a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars,” and an “Entrepreneur of Litigation, [and] a Trial Lawyer’s Trial Lawyer.”
These studies, the Washington Post reports, could “utterly change the way we think about covid-19: not as a disease that kills a tiny percentage of patients, mostly the elderly or the obese, the hypertensive or diabetic, but one that attacks the heart in most of the people who get it, even if they don’t feel very sick. And maybe their lungs, kidneys or brains, too.”
As Professor Banzhaf explains, when a law suit is brought for negligently causing a death, the damages which can be claimed are primarily related to the amount of money the deceased would have earned but for the wrongful actions of the defendant.
Loss Of Consortium
In some states, damages may also include “loss of consortium” which occurs when a death deprives a spouse or immediate family member – especially a minor child – of the deceased’s love and companionship.
So when an elderly person dies, the loss of prospective earning may be small to nonexistent, especially if he had already retired. Even if older victims were still employed, the number of years they would be expected to continue living and earning would be limited by their age, and limited even more if they had a major medical condition such as high blood pressure or diabetes, or were obese – major factors in COVID-19 deaths.
Likewise, the monetary value of the loss of consortium of an elderly parent to an adult child would be limited, especially if the deceased lived in a nursing home, when a significant percentage of COVID-19 deaths occur.
But it appears that a growing percentage of those who are now coming down with COVID-19 are otherwise-healthy non-elderly adults.
Since they are very likely to be gainfully employed and have a lengthy anticipated lifetime of ever-rising earnings, the damages expected to be awarded in a wrongful death action in such cases are likely to be much higher than with elderly victims.
Likewise, younger adults are much more likely to have young children and a spouse living with them, so damages for loss of consortium almost certainly would be considerable.
COVID-19 Does Not Always Lead To Death
Even more serious is research suggesting that, although the great majority of adults who get COVID-19 do not die, most do suffer lasting and often disabling injuries to their health.
These injuries occur especially to their hearts, but apparently also potentially to their lungs (including “post-COVID pulmonary fibrosis” which causes permanent damage in the lungs), kidneys , and even to rains and the central nervous system (which can lead to neurological symptoms, including confusion and cognitive impairments, fainting, sudden muscle weakness or paralysis, seizures, and even ischemic strokes).
For example, a recent medical study followed up with 100 recovered patients with a median age of 49. Two-thirds of these otherwise healthy adult patients were never sick enough from their COVID-19 to be hospitalized.
Yet 78% showed signs of cardiac involvement, and MRIs indicated that 60% of them had experienced cardiac inflammation.
In other words, the overwhelming majority of otherwise-healthy non-elderly adults who survived COVID-19 nevertheless suffered from serious medical complications.
Another study of 416 patients hospitalized with COVID-19 found that 20% of the patients had heart damage during hospitalization.
Perhaps even more ominous, a study of millions who had COVID-19 and survived suggests that 10%-15% nevertheless have long-term illnesses.
STAT predicts that as many as one third of COVID-19 recovering patients could experience neurological or psychological after-effects of their infections.
“It’s not only an acute problem. This is going to be a chronic illness,” warns Wes Ely, a pulmonologist and critical care physician at Vanderbilt University Medical Center.
At least 7 healthy and elite college athletes have suffered an inflammation of their heart muscles (myocarditis) which can cause sudden death or other serious medical consequences.
Permanent Lung Damage
In another situation, several patients, who had only mild COVID-19 infections, nevertheless suffered lung damage which appeared to be permanent.
Many other COVID-19 patients who survived reportedly are still suffering everything from chronic fatigue, mental problems (“brain fog”), and chest pains, to recurrent fevers, even months after the disease itself is over.
So, if we focus not only on the very small percentage of otherwise-healthy non-elderly who contract COVID-19 but do not die as a result, and look at the much larger percentage – perhaps even the majority – who suffered damages to their hearts, circulatory systems, lungs, kidneys, and perhaps brains, the potential damages in a legal action would be much higher.
It would presumably include the added expenses of medical care and treatment for the remainder of the person’s life, as well as any cessation or decrease in his earning due to a weakened heart or other chronic medical condition; losses not restricted to physical laborers, but also including successful lawyers who can no longer try stressful cases, surgeons who cannot preform difficult operations, athletes, etc.
In addition, those who survive, but are prevented from engaging in common activities – such as bicycling, hiking, climbing or camping, running or playing sports, climbing stairs, or even dancing or playing catch with a child – could also recover for the loss of the pleasure of engaging in such activities; damages which are included under the heading of “pain and suffering.”
However, even this dramatic anticipated increase in the size of verdicts should not necessarily deter stores or colleges from opening, says Banzhaf, citing at least two reasons.
The Number Of Coronavirus Law Suits Filed Seems Relatively Low
First, considering the huge numbers of Americans who have been afflicted by the Coronavirus, including those who have died, the number of law suits filed seems to be very low, perhaps in part due to the need to prove exactly when and how the plaintiff became infected – what lawyers call proving causation in fact – argues Banzhaf.
Second, potential legal exposure might be substantially reduced simply by requiring potential plaintiffs to agree to waive legal liability.
If schools which teach rock climbing, parachute jumping, or even motorcycle riding can and usually do require students to acknowledge the inherent risks and to assume sole responsibility for them, colleges and universities can (and many already are) require their students to sign waivers acknowledging this new risk, and likewise absolving the school from legal liability for any coronavirus infections they might acquire.
Meanwhile, stores might try to protect themselves by posting signs – e.g., “By Entering Customers Acknowledge and Assume the Risks Posted by COVID-19” – prominently on their doors, Banzhaf suggests.
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