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Revisiting the Tennessee COVID-19 Recovery Act (Download a copy)
We thought it would be a good time to revisit the provisions of the Tennessee COVID-19 Recovery Act (“the Act”), which was signed into law by Governor Bill Lee last August. The Act is an example of a liability shield law and essentially makes it more challenging for plaintiffs to file lawsuits related to COVID-19 injuries. Tennessee is not unique in enacting a pandemic-related liability shield law: over half of states have passed legislation based on similar principles. In this post, we wanted to review how the Act has impacted COVID-related litigation.
There are four key ways in which the Act makes COVID-19 litigation more difficult for an injured party: 1) increasing the requirements for pleading, 2) requiring a more onerous certificate of good faith, 3) raising the burden of proof, and 4) increasing the standard of care. As compared to a normal negligence lawsuit, these provisions work together to make COVID-19 claims substantially harder to both plead and prove.
From the outset, the Act requires more information from a plaintiff alleging a COVID-19 injury than a normal negligence lawsuit. In their initial filings with the court, parties alleging COVID-19 injuries are required to detail “specific facts with particularity” to establish their claim. This requirement is more exacting than the normal “notice pleading” standard seen in many negligence lawsuits, where the plaintiff only has to include enough information to put the defendant on notice of the issues presented. By requiring the injured party to plead with specificity, the Act is requiring the injured party to present a more fully developed claim upfront before even beginning the litigation process. And because of the information disparities that often exist between plaintiffs and defendants, this pleading requirement will end many claims before they get started and leave other claims vulnerable to being dismissed.
Another item in the Act is the “certificate of good faith” requirement. In addition to their initial pleadings, plaintiffs are also required to file a certificate of good faith stating that 1) they or their lawyers have consulted with a physician and 2) the physician has provided a signed, written statement that they are competent to express an opinion about exposure or contraction of COVID-19 and believe that the alleged COVID-19 injury was caused by an act or omission of the defendant. Compared to other health care liability actions, the Act’s certificate of good faith requires a physician willing to make a representation about causation, again before the litigation and the discovery process have begun.
Furthermore, the Act increases the burden of proof on the injured party. The Act requires the injured party to establish their claim by “clear and convincing evidence.” This is a more rigorous burden of proof than the “preponderance of the evidence” or “more probable than not” standard that is required in most civil suits. In comparison, clear and convincing evidence is often defined as evidence that “enables the fact-finder to form a firm belief or conviction regarding the truth of the facts, and eliminates any serious or substantial doubt about the correctness of these factual findings.”
Finally, the Act requires more than just an allegation of simple negligence. Instead, the Act limits liability to cases where the plaintiff can establish “gross negligence” or “willful misconduct.” Although the Act does not define these terms, the Tennessee Court of Appeals has defined gross negligence as acting both negligently and with “utter unconcern for the safety of others, or . . . reckless disregard for the rights of others” and has defined willful misconduct as intentionally acting in “purposeful violation of orders” and with “an element of perverseness.” As local attorney Hannah Lowe writes, “[C]laims alleging (and establishing) ‘gross negligence’ and ‘willful misconduct’ are extremely rare.”
Altogether, the provisions of the Act create high barriers to entry for lawsuits related to COVID-19 injuries. Many of these potential suits may never be brought. The cases that are filed face a challenging path.
Nevertheless, if you have been injured by COVID-19 and are considering a lawsuit, you may want to discuss the viability of your claims with an attorney. And if you are an individual, healthcare provider, or business being sued for a COVID-19 related matter, you should consider hiring an attorney to develop a plan for combating these claims.
If you’re looking for a lawyer and just don’t know where to start, the Knoxville Bar Association’s LRIS is a great place to begin. We match you with a lawyer that suits your needs. Our trusted attorneys provide you with a free consultation so that you can decide if it’s the right fit. Want to learn more? Call us at (865) 522-7501 or visit knoxbar.org/lawyerfinder.
The materials contained in this blog are intended to, and do, provide only a broad overview of various legal topics. The general information contained in this material is not designed nor intended to be a substitute for legal advice on a specific legal issue or question. In addition, the information provided in this material is only general advice and may not be applicable to apparent similar individual problems, since only slight changes in facts change the applicable advice. If you have a legal problem or question, please consult an attorney.
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 See Senate Bill 8002 and House Bill 8001, Bill Summary, available at https://wapp.capitol.tn.gov/apps/BillInfo/Default.aspx?BillNumber=SB8002&ga=111.
 The Act applies to “persons” alleging “loss, damage, injury, or death arising from COVID-19.” T.C.A. § 29-34-802(b). In this blog post, we use the catchall term “COVID-19 injury” to encompass these various claims.
 Chris Marr, COVID-19 Shield Laws Proliferate Even as Liability Suits Do Not, Bloomberg Law, Jun. 8, 2021, available at https://news.bloomberglaw.com/health-law-and-business/covid-19-shield-laws-proliferate-even-as-liability-suits-do-not.
 T.C.A. § 29-34-802(c)(1).
 See, e.g., Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 427 (Tenn. 2011) (describing Tennessee’s historical liberal notice pleading standard).
 T.C.A. § 29-34-802(c)(2).
 Compare T.C.A. § 29-26-122(a) (laying out the requirements for the certificate of good faith in a health care liability action) with T.C.A. § 29-34-802(c)(2).
 T.C.A. § 29-34-802(b).
 In re Carrington H., 483 S.W.3d 507, 522 (Tenn. 2016) (cleaned up).
 T.C.A. § 29-34-802(b).
 Greene v. Titi, 2010 Tenn. App. LEXIS 8, at *22 (Tenn. Ct. App. 2010) (cleaned up).
 Hannah Lowe, The Tennessee COVID-19 Recovery Act, DICTA, Nov. 2020, at 16.
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