[Congressional Record Volume 166, Number 93 (Monday, May 18, 2020)]
[Senate]
[Pages S2473-S2474]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                              Coronavirus

  Mr. CORNYN. Madam President, after every natural disaster, after 
every major emergency, there is always a period of response--that 
initial triage. Think about performing search and rescue operations, 
providing medical care, and setting up emergency shelters. You are 
moving quickly to complete these time-sensitive tasks to get everyone 
to safety and minimize the loss of life.
  At some point, though, you begin to transition to recovery--clearing 
the debris, restoring power, rebuilding, and eventually trying to 
return to life as normal. As always, there will be a period of 
transition between those periods in which you continue to focus on the 
short-term response while you plan for the longer term recovery. While 
we face a much different type of crisis today, I believe the same 
principles apply.
  Our heroic healthcare workers continue to respond to this virus on 
the frontlines. Our farmers, our ranchers, our truckers, our grocery 
store employees, and food banks are ensuring people have food on their 
tables. The mailmen, delivery drivers, waste collectors, and other 
workers in critical sectors are keeping the cogs of our society and our 
economy running, and slowly but surely, recovery is happening too.
  In Texas and other States across the country, businesses are 
welcoming customers through their doors for the first time in a while. 
Parks are beginning to reopen, and schools are making plans for the 
fall. Every day, the needle is moving in a positive direction, but I am 
worried that, without some protections for these workers, these 
businesses, these churches, and these food banks, we are going to 
reverse course or stop them dead in their tracks. We are already seeing 
lawsuits piling up that claim somebody did this or did that in a 
corona-related incident. Unfortunately, there is an economic incentive 
to use as a cash cow the virus that has infected some 1.5 million 
Texans, and we are setting up for what could be one of the biggest 
bonanzas in history in terms of litigation.
  You had better believe that those who could find themselves on the 
receiving end of these lawsuits are taking notice. A recent survey by 
the National Federation of Independent Business found that nearly 70 
percent of small business owners are concerned about liability claims 
and that hospitals are cautious about resuming procedures, like organ 
transplants or cancer biopsies, because they could get sued as well. 
Even if you have done everything the public health officials say you 
should do and even if you have accommodated every request that the 
President, the Governor, or the mayor has made, you could still be 
sued. Even if businesses and hospitals follow all of the relevant 
guidelines and act in good faith, they could end up fighting very long 
and very expensive lawsuits. They could end up winning those lawsuits, 
but they could also end up going bankrupt in the process because 
defending a lawsuit is not cheap. At a time when we want people to 
focus like a laser on reopening their businesses and refilling these 
jobs, we can't allow that incentive for a lawsuit lottery to bleed our 
health workers dry and deter our recovery.
  Congress needs to take action to prevent these opportunistic lawyers 
from using this crisis to make money and to, at the same time, hurt our 
economy and hurt our recovery. Leader McConnell and I and others are 
working on a proposal that would put commonsense reforms in place and 
protect those who act in good faith from being sued into oblivion. I 
want to be absolutely clear about the goals of this legislation. There 
is no effort to pass a blanket immunity. There is no effort to protect 
bad actors who willingly put their patients, their employees, or 
customers in danger. What we are talking about is temporary and 
targeted liability protection for those who act in good faith and 
follow all of the relevant public health guidelines and direction.
  First, we must protect the healthcare workers who are on the 
frontline of this crisis. These men and women have made tremendous 
physical and mental sacrifices while serving during this unprecedented 
time, and we simply can't allow them to be taken to the cleaners by 
those who are looking for a payout.
  More than a dozen States have already provided protections for 
healthcare workers by raising the threshold for medical malpractice 
lawsuits. The Democratic Governor of New York, Andrew Cuomo, has issued 
an executive order granting healthcare workers immunity from civil 
liability. Let me make sure people get this. The Democratic Governor of 
New York has issued an executive order granting healthcare workers 
immunity from civil liability. Again, this is not a blanket immunity. 
There are exceptions for gross negligence and willful conduct.
  If limiting liability makes sense in New York, then I think it 
certainly makes sense elsewhere. We need to provide the same level of 
protection for healthcare workers all across the United States so they 
can operate without fear of having to defend themselves in lawsuits 
when they are doing their very best, in a time of crisis, to, in good 
faith, follow all of the appropriate guidance. Yet we can't stop there. 
We have to provide similar protections for the workers, the businesses, 
the schools, the nonprofits, and other institutions that are critical 
to our recovery.
  Think about small business owners--70 percent of whom I know are 
worried about liability lawsuits, which is according to the National 
Federation of Independent Business. Once they receive the green light 
to open their doors, they have to make a very important decision: Is it 
worth the risk?
  Let's say that you are a restaurant owner who has gone through the 
CDC's newly released decision tree for restaurants and bars and that 
you are prepared to implement all of the recommended health and safety 
actions as well as to monitor your staff. There is nothing stopping the 
first person who walks through the door from suing you in a few weeks 
because one believes one contracted the virus at your restaurant. It is 
not just businesses that are facing these types of decisions. Any 
nonprofit organization or agency that serves the public is in a similar 
position, even if it has gone to great lengths to comply with public 
health recommendations.
  As our public schools, colleges, and universities weigh decisions 
about reopening this fall, liability protections are going to play a 
major factor. Last week, the Committee on the Judiciary held a hearing 
on liability protections. One of the witnesses we heard from was Lee 
Tyner, who serves as the general counsel for Texas Christian University 
in Fort Worth, TX. In his testimony, Lee called this the ``cliff 
problem.'' He said that this is what his University of Virginia law 
school professor used to describe as being an uncertain standard of 
care. A liability cliff is some sort of line that would be catastrophic 
to cross.
  If you know where that cliff is, you are able to make good decisions 
about how far you are willing to go and what kind of risks you are 
willing to take, but if you do not know exactly where it is, then 
uncertainty will likely lead you to avoid the area altogether. In

[[Page S2474]]

this case, as Lee pointed out, our country needs our colleges and 
universities to walk toward the cliff but not to go over it, just as we 
need healthcare workers, businesses, nursing homes, and nonprofits to 
do the same. Yet we can't ask them to do it blindly or in the dark or 
without providing the needed clarity so that they can manage their 
risks.
  I think what is so different about this pandemic is that people get 
so much contradictory and conflicting information from a variety of 
sources. Most of us know how to manage risk in our lives, but it is 
hard to manage uncertainty, and that is what we are asking the Senate 
and the Congress to do is to provide some certainty in the midst of 
this uncertainty. These workers and institutions are critical to 
helping our response and recovery move forward, and we can't ask for or 
expect them to make decisions without having some level of certainty. 
They need to know with confidence that, if they are operating in good 
faith and obeying the public health and other government guidelines, 
that they will not inadvertently step over the edge of the cliff and 
find themselves in free fall
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.