Congress must pass coronavirus tort reform

In addition to providing money and support to America’s workforce, Congress has a duty to head off and prevent further harm to our nation from frivolous Coronavirus lawsuits in the guise of “harm” caused to citizens as the result of government or business decisions made in good faith.

Senate Majority Leader Mitch McConnell (R-Ky.) is right to call for legislative action now to head off and shield federal, state, local governments, businesses and individuals from the exposure of liability from certain tort civil lawsuits that are grounded in actions stemming from the pandemic. Coronavirus tort reform litigation legislation is needed.

A tort, by general definition, “is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits a tortious act.” A tort can be an act of negligence or gross negligence or an intentional act. Torts are civil acts that generally call for a remedy of money damages — car accidents, trip and fall, malpractice, food poisoning, are all common examples of torts.

The coronavirus is a breeding ground of opportunity for frivolous suits that could wreak havoc on our civil judicial process, government operations and the conduct of business in a national crisis environment.

You do not have to be a seer to realize that without restrictions on tort liability — and without indemnification for those who need protection from legal abuses — our economy will be further harmed by predatory lawsuits or the mere threat and exposure to same.

Governments — federal, state and local — are wrestling with the question of when and how to reopen society in the aftermath of what could be just the first wave of a national pandemic. As the president has said, we have to make sure the cure is not worse than the disease. We have to act smartly and with informed decision making. We are dealing with unprecedented challenges with a “risk v. reward” criteria in decision making.

The fact is that our country is way too diverse and different to provide a “one size fits all” for all 50 states and the territories when it comes to reopening. What is good for California is not necessarily good for Kentucky.

Federal, state or local governments are making decisions that are either binding or discretionary on the population, which opens the door to second guessing, disagreements and yes, lawsuits. It is foreseeable that some may be “harmed” by the decisions that governments or businesses will make, but the greater good must be served by the risk — decisions made in the best interests of a majority of the population.

It is unfair for governments and businesses to bear the burden of liability for policies made in good faith to remediate or prevent further harms much greater to their populations and customers than if decisions are not made at all.

Now is the time to get America back to work. Time is of the essence. We must do so in an orderly and informed way. We need to protect governments, businesses and individuals from abuses to our civil legal system by shielding them from specific types of litigation flowing from the pandemic. We must also provide specific and targeted indemnification to governments, businesses and individuals to ensure actions will be taken by them without fear of unfair abusive litigation which exposes governments, businesses and individuals to the costs of expensive litigation as well as unsustainable money damages by multiple litigants.

Governments’ primary responsibility is to prevent harm, not merely respond to it when it occurs.

Pandemic tort reform should be a bipartisan effort to prevent further harm to our fragile economy and must be enacted forthwith.

Bradley A. Blakeman was a deputy assistant to President George W. Bush from 2001 to 2004. A principal of the 1600 Group, a strategic communications firm, he is an adjunct professor of public policy and international affairs at Georgetown University and a frequent guest on Fox News and Fox Business.