The Arizona Legislature has passed SB 1377, which provides civil immunity for employers and health care providers for acts or omissions related to “a public health pandemic that is the subject of the state of emergency declared by the Governor.  According to its terms, SB 1377 will be retroactive to March 11, 2020.

According to Governor Ducey in his State of the State address this past January, this law will assure that “a statewide emergency doesn't line the pockets of trial attorneys with frivolous lawsuits,” and the governor is widely expected to sign this bill into law.

The law provides that during a state of emergency for a public health pandemic, a person or provider who acts “in good faith” to protect others from pandemic related injuries or property damage cannot be liable for any such injuries or damages unless one proves, by clear and convincing evidence that the defendant acted with “wilful misconduct or gross negligence.” 

Those protected by this law include anyone who furnishes consumer or business goods or services or entertainment, schools, “property owners”, nonprofits, religious organizations, state and local governments, and any health care provider.  The immunity applies to any screening, assessment, or diagnosis of COVID-19.  The law does not apply to nursing homes unless the nursing home proves its care was the direct result of having to provide care to patients needing treatment for the pandemic.

Despite the stated concern about “frivolous lawsuits”, there have been few, if any lawsuits related to the pandemic.  Furthermore, this law misses the point that to prove any injury case, one always needs to prove negligence, which means failing to act reasonably under the circumstances, which of course include the pandemic related emergency.

Nothing in this law requires businesses or health care providers to abide by CDC or other guidelines to merit immunity.  In our view, this law is nothing more than an unnecessary and unjust attack on the right to seek redress wrongs.