September 21, 2020

Volume X, Number 265

September 18, 2020

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Wisconsin COVID-19 Law Includes Limited Civil Liability Immunities for Suppliers of Essential Equipment and Medical Professionals

On April 15, 2020, Wisconsin Governor Tony Evers signed into law 2019 Wisconsin Act 185 (Act 185) in response to the 2019 novel coronavirus (COVID-19) pandemic. Act 185 is meant to provide wide-ranging support for the response to the health and economic suffering caused by COVID-19. Act 185 includes provisions providing limited immunity from civil liability to manufacturers, distributors and sellers of specified essential medical supplies as well as specified health care providers.

IMMUNITY FOR MANUFACTURERS AND SUPPLIERS OF ESSENTIAL MEDICAL SUPPLIES

Act 185 provides immunity from civil liability for manufacturers, distributors and sellers of emergency medical supplies for death or injury caused by those supplies if certain conditions are met. Emergency medical supplies are defined in Act 185 as “any medical equipment or supplies necessary to limit the spread of, or provide treatment for, a disease associated with the public health emergency related to the 2019 novel coronavirus pandemic, including life support devices, personal protective equipment, cleaning supplies, and any other items determined to be necessary by the secretary of health services.”

The Wisconsin secretary of health services has not yet provided guidance as to which items specifically are necessary, how that determination will be made or if companies can inquire as to whether their items are necessary.

The scope of immunity is narrow and focused on essentially what are “Good Samaritan” suppliers. Act 185’s protection only applies where a manufacturer, distributor or seller donates or “sells, at a price not to exceed the cost of production” the emergency medical supplies to a charitable organization or government. The cost of production is defined as the total cost of inputs, wages, operating the manufacturing facility and transporting the product. In turn, charitable organizations who receive qualifying emergency medical supplies are immune from liability stemming from their distribution, so long as the distribution is made free of charge.

IMMUNITY FOR HEALTH CARE PROVIDERS AND PROFESSIONALS

Act 185 also provides immunity from civil liability to health care professionals and health care providers and their employees, agents, and contractors for accidents and omissions resulting in death or personal injury under limited circumstances. The conditions required for immunity are:

  1. The incident occurs during the state of emergency declared by Governor Evers’ Executive Order #72 or within 60 days of its expiration. Emergency Order #12, Safer at Home Order, issued pursuant to Executive Order 72, has been extended until May 26, 2020. Therefore, this immunity will last until approximately July 25, 2020, unless the order is rescinded earlier.

  2. The actions are consistent with directions, guidance or recommendations by federal, state or local officials to address the emergency, or publications issued by the state or federal departments of health and human services.

  3. The actions do not involve reckless, wanton or intentional misconduct.

Act 185’s definition of health care professionals and providers is expansive and includes, among others, physicians, nurses, dentists, pharmacists, social workers and EMTs.

KEY TAKEAWAYS FOR MANUFACTURERS AND SUPPLIERS OF MEDICAL SUPPLIES

The immunity afforded manufacturers, distributors and sellers of emergency medical supplies does not extend to market transactions. Rather, it is designed to facilitate donations and at-cost sales. Additionally, there is no guidance on what items the Wisconsin secretary of health services will deem necessary to fight COVID-19, other than specified items such as masks, gowns, ventilators and medications. The immunity provided manufacturers, distributors and sellers is extremely limited and, in the case of sales at cost, requires diligent tracking of production costs.

KEY TAKEAWAYS FOR HEALTH CARE PROVIDERS AND PROFESSIONALS

The immunity provided by Act 185 to Wisconsin health care professionals and providers is geared toward protecting them from adverse outcomes in treating COVID-19 patients, and is perhaps an implicit recognition that there is not consensus within the medical community as to how to treat the virus. This immunity appears to provide beneficial protection, so long as the health care actions are based on government advice, publications or guidance.

Copyright © 2020 Godfrey & Kahn S.C.National Law Review, Volume X, Number 111

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About this Author

Paul J. Covaleski Litigation Attorney Godfrey & Kahn Madison, WI
Associate

Paul is an associate in the Madison office and a member of the Litigation Practice Group. Paul has litigated a variety of complex civil matters in Illinois and Wisconsin state and federal courts, primarily in the areas of labor & employment, products liability, antitrust, and insurance coverage.

Paul previously worked for a Chicago based law firm, focusing on commercial defense, products liability, and employment, matters. Prior to that, Paul worked as a judicial intern for the Honorable Thomas Waterman of the Iowa Supreme Court. While in law school, Paul served as a Note and...

608.284.2619
Josh Johanningmeier, Godfrey Kahn Law Firm, Madison, Labor and Employment, Insurance Litigation Attorney
Shareholder

Josh is a shareholder in Godfrey & Kahn’s Products Liability & Torts Practice Group and a member of the firm’s Labor & Employment Litigation and Insurance Practice Groups.

Product Liability

Josh is the chair of the firm’s Products Liability and Torts Practice Group. In product litigation, Josh defends manufacturers in cases involving personal injury, wrongful death and property damage. In addition to litigation, Josh works with manufacturers to assess and develop on-product warnings as well as instruction and user manuals for products. He also counsels manufacturers, distributors and retailers on regulatory compliance and recall issues, including incident and defect reporting to the Consumer Product Safety Commission (CPSC) and National Highway Traffic Safety Administration (NHTSA).

Josh has defended and counseled clients on matters involving numerous products, including asbestos-containing products, adhesives, all-terrain vehicles and ATV accessories, automobiles and automobile accessories, building products, laundry and cleaning chemicals, clothing, fasteners, furniture, magnets, motorcycles, pneumatic tools, personal watercraft, respirators, snowmobiles, toys and vehicle accessories.

Labor and Employment Litigation

Josh represents employers in administrative agency proceedings, as well as state and federal trial and appellate courts. He has defended discrimination and retaliation claims, as well as disputes regarding restrictive covenants, trade secrets, wage claims and whistleblower claims and termination disputes. Josh regularly represents public and private employers in disputes involving union and non-union employees.

Insurance

Josh is also a member of Godfrey & Kahn’s Insurance Practice Group, where his practice includes serving as General Counsel to the Independent Insurance Agents of Wisconsin (the “Big I”), the state’s largest insurance agency trade association, which provides a Legal Services Hotline to its membership (IIAW Hotline Information). Josh also represents insurance companies and agents in litigation and before the Wisconsin Office of the Commissioner of Insurance.

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