More Than A Blame Game

Can those responsible for the lack of preparedness be held personally liable?

There has been much talk over the last couple of weeks about the severe lack of personal protective equipment (PPE) for nurses, doctors, and other frontline health care workers tasked with saving lives during this COVID-19 pandemic. Connecticut is, unfortunately, locked in the epicenter of the outbreak, with more cases reported in the greater New York City area than anywhere else in the country. Whether the reporting is accurate I will save for another day, but few will argue that we are in the midst of a very serious public health crisis. And I believe that, once the truth is fully revealed, few will be able to argue that this is a crisis that could have been avoided (or at least significantly mitigated) had the officials responsible for protecting the public health done their jobs. Even the much-maligned New York Times admitted as much in a March 19, 2020 article, Before Virus Outbreak, a Cascade of Warnings Went Unheeded (https://www.nytimes.com/2020/03/19/us/politics/trump-coronavirus-outbreak.html), although predictably they used it as platform for attacking President Trump (I’ll spare you the time and summarize: Obama good, Trump bad, yawn). But what about local public health officials and Governors across the country, some of whom received direct warnings from federal and world health authorities in the wake of the 2014 Ebola outbreak in West Africa, and all of whom bear the ultimate responsibility for protecting the populations in their backyards?

This is where negligence comes in. In tort law, there are four elements one must prove in order to state a claim for negligence in civil court: 1) that the defendant owed a legal duty to the plaintiff, 2) that the defendant breached that duty, 3) that the plaintiff suffered an injury, and 4) that the defendant’s act or omission (failure to act) was the proximate (direct) cause of the injury. Proving that these elements are present does not automatically win your case; it simply means that you have stated a prima facie case that can survive dismissal on a motion for summary judgment. There are, of course, defenses that can be raised which, if proven, exempt the defendant from liability.

In the case of a public official, the primary defense that will likely be invoked is sovereign immunity. Sovereign immunity means that a government official can’t be sued for harm that results from official actions (acts performed within the scope of one’s official duties). The reason for this is simple: if everyone could sue every time something bad happened as a result of a government official’s actions or omissions, the courts would be clogged with nothing but suits against state offficials, and the officials would not be able to perform any of their duties, as they would be spending all of their time in court. Other important court business would also be neglected or extremely delayed. There is always going to be someone that is not happy with an official decision, or is in some way harmed by it. As the old saying goes, “You can’t please everyone.”

But what about when an official is grossly negligent to the point of dereliction of duty? What about when a public health official knew that something had to be done to protect the public health because of a clear and imminent threat, but deliberately chose not to take action? Well, there’s an exception for that. Connecticut’s sovereign immunity statute, C.G.S. Sec. 4-165, reads, in relevant part: “No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his or her duties or within the scope of his or her employment. Any person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter.” The bold type (added by me) are the key words here. A state official can be held personally liable for injury if his/her official act or failure to act was “wanton, reckless or malicious.”

Take, as an example, Connecticut Department of Public Health (DPH) Commissioner Renée Coleman-Mitchell (against whom, in the interest of full disclosure, I have a pending lawsuit that I will not comment on here). Even if it were proven that she knew that there was a strong possibility that the state would face a major pandemic in the near future, and made the decision not to purchase more PPE for healthcare workers, she could not be held personally liable unless it were proven that she failed to act because she was extremely careless (wanton, reckless) or was actually trying to harm the public (maliciousness). While I am confident that she was not trying to deliberately harm anyone, we would need more information to determine whether she was wanton or reckless. Did she fail to order the PPE simply because of a budget restriction, such that ordering extra PPE for the future would have meant she would not have been able to order other medical supplies that were more immediately necessary? In that case, her actions could not properly be characterized as wanton or reckless. If, however, she had the necessary funds but for no good reason just decided to ignore the warnings of federal health authorities, as well as her own staff, regarding the urgent necessity of ordering more PPE, that may very well be a different story.

The only way we can know, of course, is through a Freedom of Information Act (FOIA) request. I would strongly encourage all of you to immediately submit such a request to the DPH. Ask for any and all communications containing the words “personal protective equipment” or “PPE” sent or received by the present or former DPH Commissioner from January 1, 2014 through March 31, 2020. That should give you a good starting point.

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