Covid-19: The Laws, The Problems, and The Ethics
Presented by
Mark Fogg, Childs McCune
Kevin Kuhn, Wheeler Trigg O’Donnell
Erin Tatman, Wheeler Trigg O’Donnell
CLE
May 14, 2020
Time: 4:00 PM - 6:00 PM
Location:
To Learn More and to Register, Click Here
I. National Legislation/Declarations
A. The CARES Act: Coronavirus Aid, Relief, and Economic Security Act
(Public Law No. 116-136)
1. Broad overview of Act.
B. The PREP Act: Public Readiness and Emergency Preparedness Act (Public Law No. 109–148, Division C, codified as 42 U.S.C.A. § 247d-6d & 6e) and the COVID-19 PREP Act Declaration (85 FR 15198)
1. Including past PREP Act Declarations and the importance of the victim compensation fund. What about Colorado’s own possible immunity legislation?
II. Colorado Legislation/Executive Orders/Legal Opinions
A. Basic Overview of Legislation & Executive Orders to Date
1. Including timeline of a few key orders such as Stay-At-Home & Safer- At- Home orders
2. Introduce Colorado Disaster Emergency Act
B. In Re: Interrogatory on House Joint Resolution 20-1006, 2020 WL 1855215 (Colo. Apr. 1, 2020)
III. guidance for healthcare providers, communities, and employers
A. CDC Guidelines
B. NIH Guidelines
C. CDPHE Guidance
D. Guidance from Various Industry Groups
IV. Specific Substantive Areas
A. Professional Liability
1. Liability and immunity: Different state approaches and authorities; Colorado statutory framework, Crisis Standards of Care, Governor’s Expert Emergency Epidemic Response Committee (“GEEERC”)
2. Volunteer immunity and Good Samaritan statutes: Interplay between federal and state statutes
3. Telehealth: What have we learned? What lies ahead?
4. Licensing: Further dissolving of state boundaries?
5. Elective surgeries and procedures: Delays and resumption. What liability protections exist?
6. Scope of practice issues: What protections?
7. COVID-19 liability cases: Flood or trickle?
B. Workers’ Comp (especially C.R.S. § 8-41-102)
1. Exclusivity in face of COVID-19-related claims?
C. Premises Liability (C.R.S. § 13-21-115)
1. What types of claims do we anticipate?
D. Insurance Coverage Issues
1. Possible business interruption claims and ISO Form CP 01 40 07 06, Exclusion for Loss Due To Virus Or Bacteria
2. Other potential coverage issues?
E. Class Actions
1. What types of claims do we anticipate?
2. Against whom?
V. Practical Protective Enactments, i.e., “legal PPE”
A. Documentation
1. Ever critical, documentation may be even more important now. We’ll discuss a few ideas for lawyers and their clients.
B. Following Guidelines
1. With so many, ever-changing guidelines out there, what is reasonable?
C. Defending the Imminent Claims at Trial
1. How are our potential jurors experiencing the pandemic?
2. What will they remember and how will that influence their decisions at trial?
3. What can we, and our clients, do now to prepare?
VI. Ethics
A. Rules of Professional Conduct:
1. 1.1 (competency)
2. 1.4 (communication)
3. 1.6 (confidentiality)
4. 5.1 & 5.3 (supervisory)
B. Ethical Obligations for Lawyers Working Remotely, PA Bar Association Formal Opinion 2020-300
C. Obligations Under Rule 1.2(d) to Avoid Counseling or Assisting in a Crime or Fraud in Non-Litigation Settings, ABA Formal Opinion
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