- Associated Press - Tuesday, May 19, 2020

The Kansas City Star, May 15

Let’s hope that the Kansas Legislature does not get around to limiting liability for COVID-19-related claims when it meets for its one-day-only legislative fire sale session on Thursday.

Since the main purpose of meeting seems to be to boost Kansas Senate President Susan Wagle’s U.S. Senate campaign, which isn’t so much faltering as flat-out faltered, there may not be time for much mischief beyond trying to show Gov. Laura Kelly who’s boss.

But the proposals that were being batted around during a Zoom hearing of the House Judiciary Committee on Wednesday were so thrown-together and broad that it’s hard to see what good they would do.

The abuses they’d encourage are plain enough, though. And is this effort really even about COVID-19, or is it about limiting last-resort legal protections for Kansans under cover of this pandemic?



No business or health care provider can guarantee a perfectly virus-free environment for employees or customers. But in their current, unfinished form, these proposals would make it too hard to hold doctors, hospitals and businesses accountable for any negligent or harmful coronavirus-related behavior. And already lightly regulated and infrequently inspected nursing homes would be even freer to disregard the safety of residents.

This is all part of a national push to limit such protections. Kansas Attorney General Derek Schmidt is one of the Republicans pushing Congress to rein in an expected tsunami of the COVID-19 equivalent of lawsuits over coffee served too hot. (Although in that notorious but widely mischaracterized 1994 suit against McDonald’s, the finding reflected the fact that the coffee was routinely kept scalding, at 185 degrees, caused third-degree burns on the plaintiff’s legs and genitals and required extensive surgery. That’s how the courts are supposed to protect consumers.)

At the House hearing, Kansas Chamber of Commerce lobbyist Eric Stafford told the committee that without new legislation, businesses would surely be punished for doing the “good deed” of rushing to produce something coronavirus-related that they don’t usually produce.

David Morantz, president of the Kansas Trial Lawyers Association, answered that unfortunately, it isn’t only doers of good deeds who are coming out with COVID-related products.

“There are some bad actors out there” interested in cashing in on the coronavirus with various scams and shortcuts, he said. And if, for instance, they produced faulty PPE, the proposed curbs on liability could leave doctors and nurses with no recourse.

“Bad actors exist on both sides,” Stafford said, though employers, their employees and customers needn’t be on opposing sides. He said businesses have “gone above and beyond” on COVID-19 safety and insisted that making it much harder to penalize unsafe practices would not encourage more of the same.

Morantz also tried to quell concerns that health care providers could be sued over procedures or visits that were put off or didn’t happen because of the pandemic. He said medical providers even now don’t have to pay damages for injuries if they follow basic, widely accepted standards of care. Limiting non-coronavirus medical treatment during the pandemic would easily fall into that category, he said.

Cary Silverman, a DC partner with Shook, Hardy & Bacon, speaking for the American Tort Reform Association and for the Kansas Chamber said the standard for a finding of negligence should be raised so that only a business acting “willfully or maliciously” would be liable for anything COVID-19-related.

Only, how could that ever be proved? Would the employer have to yell, “And I hope you get COVID, which is why I’m taking no precautions!”

Similarly, a lobbyist for hospitals and health care providers said their proposal wouldn’t apply in cases involving “willful and wanton” conduct. Morantz answered that you don’t even know how willful or wanton conduct was until you get into the discovery phase of a lawsuit.

But the single most convincing argument of the day came from Mitzi McFatrich, of Kansas Advocates for Better Care, who said nursing homes routinely operate with less staff than is safe. “Many facilities did not practice good infection control before COVID,” she said, with hundreds of repeat offenders and only the most serious abuse triggering an on-site investigation.

These proposals would let nursing homes in particular off the hook in ways no one who even pretends to care about older Kansans can justify. “Stripping elders of their rights will put more elders at risk,” McFatrich said.

Too much can go wrong for too many to do this on the fly. And if Kansas lawmakers wanted to help hospitals, they should have passed Medicaid expansion.

The Topeka Capital-Journal, May 15

The public discussion about the new coronavirus over the past couple of months has largely been based in optimism. It is worth it now, as we face an uncertain summer, to consider whether that optimism was misplaced.

Much of the initial legislative and social response looked at shelter-in-place orders, store closings, and changes to our daily routines as - at most - temporary inconveniences. But COVID-19 has continued spreading, job losses have mounted to unimaginable heights, and scientists tell us there likely will be no quick resolution to the crisis.

The longer this goes on, however, the more our society will change. The more our lives will shift. Like it or not, we all may face fundamental changes in what America and Kansas looks like in the months, years and decades to come.

The question isn’t whether our lives will return to “normal.” Time, as the cliche helpfully informs us, heals all wounds. The question is what “normal” looks like.

Take handshakes, for example. Would you go back to shaking hands, with all the possible germ transmission it entails?

How about the ways offices are organized and run? With so many workers operating from home, will executives see a way to save on real estate costs and phase out centralized offices?

What about the retail space? Small businesses and local retailers are hurting right now, and there is no guarantee that shoppers will return even if they can. Meanwhile, online giants like Amazon are seeing more orders than ever before.

More widely, the unemployment created by the virus looks to be crushing. According to estimates, roughly one in four workers are now without a job, the highest level since the Great Depression. “Reopening” state economies, while possibly helpful, won’t bring all those jobs back. How will we as a society deal with the possible social upheaval?

We aren’t being alarmist here. We believe our country and people will endure and thrive. As a nation we have endured a Civil War, World War II and 9/11, among others. We always persevere and come through stronger.

But change is difficult. No one enjoys seeing the foundations of a society shift. Public anger over mask requirements and closure orders likely reflects this. Those who are protesting realize, on a level they probably are reluctant to admit, that their lives have changed. That is unsettling.

We will make it through together. But we may have to accept long-lasting change as we do so.

Manhattan Mercury, May 16

The debate about reopening was really all contained in a news story in The Mercury Friday.

Gov. Laura Kelly had announced that there would be a bit more delay before bars and nightclubs could reopen. Rather than Monday, Gov. Kelly’s new plan pegged that no earlier than June 1. She said that was because the rate of transmission of the virus hadn’t slowed enough.

That prompted the director of the Aggieville Business Association to complain at a local meeting, saying it could be “disastrous” for that business district. He might be right, of course.

But what would be most disastrous for Aggieville, and for Manhattan generally, would be if colleges are again forced to hold only online classes next fall. The disappearance of 20,000 students from our community — not to mention the tens of thousands of other fans who show up here on football Saturdays — is what we need to most try to avoid.

Which is why Linda Cook, the chief of staff and director of community relations at Kansas State University, said at the same meeting, “We’re just as anxious to get things open also, but we don’t want a setback that could actually cripple us even more later on.”

In other words, go slower now so that we can go bigger later.

We understand and empathize with local businesses that are itching to open. This weekend would have been graduation, a boom time here. Businesses missed the entire spring season — well, most businesses. Not all. But our point is that we get it. People want to get back to work.

Will further delay be disastrous for Aggieville? Only time will tell.

What matters most for our community is what the situation will be by the middle of August. If a little more delay now can help that, then that’s what’s in our best interest.

Dr. Anthony Fauci, the federal government’s top expert on the virus, was skeptical this past week about opening colleges in the fall. He said it was unlikely that there would be a vaccine, and so re-opening would depend on widespread testing, among other things.

In other words, the best thing for Aggieville — and for Manhattan — has everything to do with science, and support from the federal government for that science.

Meanwhile, all we can do here is to keep trying the best we can to keep from getting each other sick — both because that is the right thing to do and because it signals to decision-makers that we’re really capable of containing the pandemic.

It’s clear we’re making progress. That’s good. Hopefully, that progress will be enough to really make a difference next fall.

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