Jeremy Diamond clarifies the complex liability picture surrounding COVID-19

It has now been just over a year since the COVID-19 pandemic began to spread across the globe.

And in that time, the disease affected countless lives, with at least 188 million people infected and over 4 million killed by the deadly virus.

But the indisputable fact is, many of the people who've suffered from the disease didn't have to. In the United States alone, statistical analyses indicated that at least two-thirds of the deaths there were preventable. And the same was true elsewhere, too.

And although many people lay all of the blame at the feet of federal authorities, they're only partly responsible. Some of the biggest outbreaks came as a result of private businesses and other non-government entities failing to protect their workers and other people in their care.

That leaves many of the grieving families in the unenviable position of having to weigh legal action in the wake of a loved one's death. But there are still plenty of unanswered questions regarding liability over COVID-19 related deaths and injuries. To help, liability expert Jeremy Diamond of Diamond and Diamond is here to clarify the situation regarding liability for COVID-19 related deaths and injuries. Here's what he had to say.

What can families sue for?

Even though there aren't any specific laws pertaining to COVID-19 liability, there are plenty of workplace safety and public health statutes that apply. For that reason, the majority of COVID-19 related lawsuits filed so far allege various forms of negligence on the part of businesses and other organizations.

For example, several lawsuits have alleged negligence on the part of nursing homes and assisted living facilities, where many of the earliest COVID-19 deaths took place. According to Jeremy Diamond, that was a commonality in both the US and Canada, whose facilities were especially hard hit. And although the cases vary in their specifics, they all revolve around a central theme – that the owners and operators of the facilities failed to do a good enough job to protect their residents and staff from the virus.

Jeremy says, "Much of the litigation we've seen so far connected to the pandemic centres on conditions in nursing homes. And it's a tricky subject because you have a combination of a uniquely vulnerable population and an environment conducive to the transmission of disease. That means each patient lawsuit has the burden of proving that the spread of COVID-19 in their

facility went beyond the normally expected spread of the illness and that it was due to specific failures by the management and staff."

And that same theme comes up time and again in lawsuits claiming that private businesses failed to protect their employees from the disease. By July of 2021, at least 11,000 such cases had been filed across the US. But it's still unclear how the existing workplace safety regulations might apply to those pandemic-related cases.

Jeremy Diamond's Thoughts on the Topic

According to Jeremy Diamond, the cases will likely turn on the specifics of the employers' behaviour in each individual case. For example, clear instances where employers failed to heed relevant COVID-19 guidelines should see judges siding with plaintiffs. But cases where employers lived up to the letter of the law but failed to extend additional common-sense worker protections may be harder to win.

And then there's the matter of a patchwork of new laws limiting business' civil liability in COVID-19 related cases. Right now, the majority of US states have or are in the process of passing such laws. And in Canada, there's been movement in a similar direction. That means the legal bar for affected workers to claim damages in those places may be substantially higher.

But when it comes to business liability surrounding COVID-19, the key takeaway is simple. It's that employees or customers who can prove significant negligence on the part of a business should have the ability to sue for damages and win.

What about vaccine-related injury claims?

Even though Jeremy Diamond believes that the vast majority of legal claims related to the pandemic will be connected to the virus itself, he says that some people have also wondered about claims arising from vaccine-related injuries. And although such cases are quite rare, they do happen. But it's worth noting that any liability connected to vaccinations falls under a different part of the law than those stemming from a business's negligence.

Jeremy points out that the laws surrounding vaccines aren't well known or understood by the general public. He says, "In the US, a little-known law called the Public Readiness and Emergency Preparedness (PREP) act granted vaccine manufacturers complete immunity from liability in emergencies like this one. It was invoked in February of 2020, and it means you won't have much luck seeking damages from vaccine manufacturers or the US government until the immunity period lapses – in 2024."

But in Canada, anyone suffering an injury stemming from a COVID-19 vaccination can seek damages through the National Vaccine Injury Compensation Program. He says, "It's a program that Canada just started (after years of foot-dragging), making them the last G7 nation to have one. And just as in the US, the vaccine manufacturers themselves are immune from claims resulting from the ordinary use of their products."

And what about vaccine passports?

Other people have also started to become concerned about the requirement of so-called vaccine passports for travel and admission to schools, businesses, and other events. And although it seems like a controversial issue, the truth is that vaccine passports are neither new nor are they particularly unusual.

On this topic, Jeremy notes that requiring vaccines in this manner happens all the time. He points out that "Public schools in most places have required proof of immunity from common childhood diseases for decades. And although there's been debate about how strict the vaccination requirements should be, nobody has ever successfully challenged the very existence of the requirements. There's even a US Supreme Court precedent that suggests that vaccinations themselves could be made mandatory – so it's unlikely that claims related to vaccine passports would hold up to serious legal scrutiny."

The bottom line

The simple reality is that, other than in cases where specific laws preclude the possibility of damages related to COVID-19, we're in uncharted waters right now. It remains to be seen how courts will apply existing legal frameworks to many of the unique claims arising as a result of the pandemic. It may be years until a complete picture emerges.

When all is said and done, though, it's likely that there will be plenty of damages awarded to victims of this once-in-a-generation pandemic. That is especially true when it comes to nursing home illnesses and deaths – because those facilities exist solely to protect the health of their charges – and so many have so clearly failed in their obligations.

But when it comes to claims against other businesses, the future is far less clear. And although nothing is stopping an individual or family with a COVID-19 related claim from seeking compensation, they face high hurdles in proving their cases. And the same goes for anyone who suffered an injury related to any of the approved vaccines in the US and Canada. So, for anyone in the unhappy position of having to seek restitution after a loved one's illness or death, the best advice is to seek qualified legal representation to go over the specifics of their case and proceed from there.

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