[Congressional Record Volume 166, Number 139 (Wednesday, August 5, 2020)]
[Senate]
[Pages S4903-S4904]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                               HEALS ACT

  Mr. CORNYN. Mr. President, as our Nation's war against the 
coronavirus wages on, negotiations on the next relief package seem to 
remain at a standstill.
  The bolstered unemployment benefits provided by the CARES Act have 
expired. Principals and teachers--and parents, I might add--are 
preparing to begin the school year without adequate funding for the 
protective measures they need, and additional investments into vaccines 
and treatments are desperately needed.
  I believe the Senate should stay in session until we are able to pass 
another coronavirus relief bill, but Speaker Pelosi and Senate Minority 
Leader Schumer seem to have zero sense of urgency in delivering the 
support those in our country need, including their own constituents, 
and they have zero interest, apparently--at least so far--in a 
bipartisan compromise.
  Despite the less-than-enthusiastic interest from their own Members 
and a flatout veto threat from the White House, they continue to push 
the more than $3 trillion Heroes Act as a solution to the crisis.
  Remember, this is legislation that was so unpopular among Democrats 
that it barely managed to pass the House earlier this summer, and it 
includes extraneous items, like tax breaks for millionaires and 
billionaires who live in blue States and diversity studies for the 
marijuana industry.
  It doesn't take a policy expert to see that these portions of the 
bill have absolutely nothing to do with the crisis at hand, and they 
demonstrate how unserious Speaker Pelosi and Democrats in the House 
have been and, unfortunately, now joined by some of our colleagues here 
in the Senate--how unserious they are about actually solving this 
problem to the best of our ability.
  They even go so far as to call that particular piece of legislation, 
the Heroes Act, a messaging document. Well, that messaging document 
helps absolutely zero people. It is a wish list, a pipedream, and it is 
an effort to try to appease the most radical Members of the Democratic 
caucus.
  Though Speaker Pelosi says the title of this legislation is a tribute 
to our healthcare workers, it is really a cruel joke. The bill itself 
does nothing to protect them from one of the biggest threats lurking 
around the corner.
  We are already beginning to see evidence that the coronavirus 
pandemic is moving from hospitals to courtrooms, as lawyers have filed 
lawsuits against our essential healthcare workers and any institution 
that has kept its doors open throughout this crisis.
  This is something that has come up in my conversations with many of 
my constituents in Texas over the last several months--healthcare 
workers, educators, nonprofits, restaurant workers, child daycare 
centers, retailers--the list goes on and on.

[[Page S4904]]

  They are worried about the carpet-bombing of opportunistic 
litigation. After all, these are some of the very same people we have 
said must show up for work, must continue to provide essential goods 
and services to their communities during this crisis. Now they are 
worried that we are going to throw them under the bus and make them 
subject to lawsuits for doing the best they could under very difficult 
circumstances.
  Well, we can already see the commercials on TV or the billboards 
soliciting these lawsuits. The trial bar is prepared to file lawsuits 
against doctors, nurses, teachers, small business owners--anyone and 
everyone who might be able to pay a judgment or, more likely, who has 
an insurance policy.
  According to the law firm Hunton Andrews Kurth, nearly 4,000 claims 
have already been filed--more than 275 in Texas--but we are also 
talking about circumstances under which the statute of limitations is 2 
years. So 2 years from the claimed incident, you could file a lawsuit. 
So this is just the tip of the iceberg.
  As our economy begins to reopen, so will the floodgates, and we need 
to take action now to prevent this tidal wave of litigation from wiping 
out the very workers, businesses, and institutions we have been 
fighting to keep afloat.
  Leader McConnell and I have introduced the SAFE TO WORK Act to 
address this issue and to prevent this trial lawyer bonanza from 
bringing even more harm to our country and to our economy.
  Unlike the unserious Heroes Act, this would give our healthcare 
workers exactly the kind of support they need, but I want to make clear 
what this legislation does and does not do.
  First, it is not a blanket shield from liability. It will not prevent 
bad actors from being held accountable. It will not prevent people from 
filing coronavirus lawsuits, and it will not give anyone a ``get out of 
jail free'' card.
  In cases of gross negligence or willful misconduct, where applicable 
public health guidelines were ignored, the person bringing the claim 
has every right to sue and to be made whole, and we are not suggesting 
any change to that.
  What we do need to do, though, is put some safeguards in place to 
help those who were operating in good faith under uncertain 
circumstances, under sometimes changing guidance and direction, even 
though they were trying to follow all of the relevant guidelines.
  That includes protections for nonprofits that have gone above and 
beyond to support their communities, as the demand for their services 
has skyrocketed. It includes the schools, the colleges, the 
universities that are preparing to take every conceivable precaution to 
keep students and teachers safe this fall. It includes the hospitals 
that have been on the frontlines and have fought significant headwinds 
to keep their staff, their patients, and their communities safe. And, 
of course, it includes protections for our incredible healthcare 
workers who have been on the frontlines of this crisis for months.
  Amid rapidly changing guidelines, staffing shortages, and scarce 
supplies of personal protective equipment, they continued to adapt and 
deliver the best possible care to their patients.
  Just to give you one example of how rapidly the guidelines are 
changing, in March, the Texas Health and Human Services Commission 
provided a manual to nursing homes with guidance on managing and 
preventing a COVID-19 outbreak. The manual was 28 pages long. Since 
then, it has nearly tripled in length.
  As we have learned more about this virus, guidelines have evolved, as 
you would hope they would, to ensure that our healthcare workers know 
the most effective ways to quarantine, test, and treat patients. That 
is an unequivocally good thing. It is strengthening our response, it is 
helping us slow the spread of the virus, and it is savings lives.
  But it has also created a host of challenges for the healthcare 
workers who are the very ones complying with these rapidly changing 
guidelines, doing the best they can under difficult circumstances
  I learned about an elderly patient who arrived at a hospital 
emergency room during the early stages of the pandemic with a fever but 
no other COVID-19 symptoms.
  At that point, testing supplies were constrained, and the applicable 
CDC protocol was to limit testing only to patients who met the strict 
criteria, who had symptoms. And with only a fever, this patient did not 
meet those criteria so he was not tested.
  The healthcare workers identified an infection site that could have 
been causing his fever, so they treated him and discharged him with 
instructions to return if his condition worsened.
  Several days later, unfortunately, his condition did worsen, and he 
went to a different hospital where he was given a COVID-19 test. The 
result came back positive, and ultimately he was admitted to the 
intensive care unit.
  Then, several days later, he tragically passed away from coronavirus-
related symptoms.
  For the man's family, I know this raises questions of how things 
might have been different today if he had been tested on that initial 
visit in the emergency room. They have said they may file a lawsuit 
against the physician and the hospital for not performing a test and 
admitting the man to the hospital on the first visit.
  But the doctors there were simply following the best advice they had 
at the time and were constrained by the number of tests available--only 
to test patients when they had symptoms of the virus and, 
unfortunately, this man's symptoms did not qualify.
  If the doctor and the hospital did the best they could following 
those guidelines, they should not be subjected to these types of 
litigation.
  Now, as I have said, the legislation would not provide blanket 
immunity. Nobody is arguing for that, but we do need clear guardrails 
to ensure that the dedicated healthcare workers and other essential 
workers who were acting in good faith will not be drained dry by the 
trial bar.
  This legislation sets a willful misconduct or gross negligence 
standard to ensure that only bona fide, legitimate claims are brought 
against these healthcare workers.
  The patients subjected to that type of treatment have every right to 
sue and to be made whole, and this will preserve that basic right. But 
it will also make sure that the hard-working doctors, nurses, emergency 
medical technicians, and other medical professionals who have acted in 
good faith are not pulled into litigation that could send them into 
bankruptcy.
  Over the past several months, our healthcare workers have navigated 
the dark, treacherous, and rapidly changing waters of this storm to 
save as many lives as possible.
  I should point out that I think about 30 States have, at the State 
level, provided the kind of protection to healthcare workers I am 
talking about.
  So we need to throw them a lifeline, not feed them to the sharks. 
Instead of naming a bill in honor of our healthcare heroes that does 
absolutely nothing to help them, as the House has done, let's pass a 
bill that will honor them.
  If our friends across the aisle want to help our healthcare workers 
and thank them for their immeasurable sacrifices they have made, 
liability protection would do exactly that.
  So I hope our colleagues are prepared to acknowledge the widely known 
truth--that the Heroes Act is an unserious piece of legislation that 
has zero chance of becoming law. It is time to stop playing games and 
get serious about what our country needs at this critical moment.
  As negotiations on the next relief package continue, I would ask our 
colleagues to set aside the completely unrelated priorities in the 
Heroes Act and focus on the changes that need to be made to keep our 
healthcare and other essential workers safe but also to protect them 
from frivolous litigation.
  The PRESIDING OFFICER. The Senator from Minnesota.

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