Liability shielding can be a bit of a mis-understood concept. What is it and why is it important? As defined by Merriam-Webster Dictionary: Legal immunity, or immunity from prosecution, is a legal status wherein an individual or entity cannot be held liable for a violation of the law, in order to facilitate societal aims that outweigh the value of imposing liability in such cases IE there exists legal immunity from civil liability, also known as "liability shield." The big question of this Blog, primarily related to healthcare, is whether or not any company or person, should have exemption from liability for damages incurred by their product or service? What would or should be the necessary parameters whereby they are indemnified?
Not to over-simplify, however as an example, should Ford Motor Company have legal immunity such that those buying the Pinto have no ability to sue for damages due to a faulty product? Should Patients be able to sue Johnson and Johnson for a medication that caused them physical damage? Without getting into the weeds on economic policy or political views, the ability of the public to sue for damages is somewhat a natural stop-check that places responsibility on the part of the company to create the safest product or service possible, if nothing else, so as to avoid unnecessary risk of exposure to law suits. Clearly, corporations work on the concept of a "profit-margin" for their share holders. Seeking strong profit-margin can be a strong inducement to heavily minimize expenses. The number of successful lawsuits in this country over faulty products is striking. As with the afore mentioned Ford Pinto, All too often it is later discovered that a company had indications of faulty product, yet proceeded. For those not aware, Ford Motor Company was found guilty in Federal Court of conspiring to withhold information that the company knew ahead of time that there was a deficiency in the production of the Pinto's gas tank and that cars could possibly explode if hit at the wrong angle from behind. Federal Court found that Ford omitted this information because they had actually done the math on their margin of profit and loss. Ford found that the $11/ car Recall correction for that model was going to cost more than the wrongful death lawsuits they knew would happen. Ford sought immunity from suit, however the Court denied and found them guilty and fined them - of which, monies went to families of victims driving the Pinto when they were hit from behind and the car caught fire, severely injuring or killing the occupants. An important point to make, is that here in the United States, we have the ability for discovery and civil lawsuit in instances such as this, whereas not all countries do. Is it safe to suspect that if a Corporation is given immunity from Lawsuit, that they might place more money and effort in marketing research, than they do Safety research? There are ample examples of what people and Corporations might do for the bottom line if there is no accountability for their actions. In the above example, Could Ford have been "trusted" to produce the safest car possible, or to satisfy the bottom line - I.E. , fulfill their fiduciary responsibility to their investors? How might this scenario have panned out if they were granted immunity from suit? Would they have made the Pinto even less safe due to the fact that they couldn't be sued? This does not mean that all people and Corporations are inherently evil and self-serving, certainly there are also many examples of both people and Corporations being dedicated to responsible and ethical actions - I would argue that most people actually seek out businesses and individuals they believe to be morally responsible and ethical as a natural order of facilitating relationships based in trust.
Getting more specific, in the field of healthcare, should physicians and corporations have immunity from civil liability? Are there some that might cut corners with safety and more, in an effort to maximize profit if there were no sense of accountability? What are the circumstances in which a healthcare worker, provider, corporation etc should not have accountability? Is there a time and place where Benefits of immunity outweigh the risks? Keeping in mind that this is not the concept of "informed consent" whereby the patient is "informed" or made aware of both risks and benefits of a product or procedure, thereby making a decision on their own informed recognizance. A patient signing informed consent paperwork, in no way bars them from filing for discovery in a civil lawsuit, as many institutions and physicians well know.
Lets get really specific and take onus here. Should I, as a healthcare provider, have the ability to have liability shielding for any service or product I offer? If I am concocting an herbal elixir at my office and then selling it to the public, should the public have the ability to sue me if people start getting sick, or worse - dying? If every patient signed paperwork for informed consent, listing such reactions as "hair loss, vomiting, rash, fever, suppressed immune function, and even death", should this remove my accountability / liability? What if there are numerous reactions and mounting deaths, that I simply choose not to investigate ......because I don't "have" to if granted immunity. What if I choose to ignore the reactions and deaths and simply not do the research to implement a safer product.....because I don't "have" to if granted immunity? This quickly becomes a question of moral, ethical and responsible/accountable action on my part. This is the reason for 3rd party boards of oversight and regulatory agencies....... to protect the interests of the public. Without going too deep down the rabbit hole, lets make it very simple, should the public be able to sue me if I provide a service or product that appears in the public eye, has become suspect of causing harm, regardless of signed informed consents? Should I be protected regardless of mounting injurious data? To add icing to this cake....should I be able to pass a law that forces every person in the country to take my elixir once per month? What might be the outcome in safety of such combined actions..... if I am immune from lawsuit, and the public is legally mandated to buy and use my product? Would you, as the reader and member of the public, feel this combination of circumstance would inherently make my product better and safer, or otherwise? If my marketing department touted that my product is "safe and effective" , yet never studied safety further, would this be believable? Would it stand to reason for the public to question, that if my product is actually as safe and effective as my marketed message states, why do I have need for immunity from law suits from its use? Wouldn't this become the next logistical question by the public, especially if they were legally mandated use of the very same product?
Although it is possible for specific circumstances in which immunity is feasible, such as an EMT providing life saving medication that has a reaction with an unknown drug in the victim's system and therefore died as a result. In general, it is my opinion as a healthcare provider that legal immunity should not exist broadly within healthcare, especially as it relates to healthcare products. In Particular, there is the potential for a "perfect storm" of negative consequence when indemnification is paired with mandate of the same product or service. This would seem to place the public at greater risk without the natural barriers of bearing risk in the market place.
To be clear, in the healthcare realm, rarely do products or services enjoy such immunity from lawsuit. Largely only one area of healthcare has attained such a feat; this is vaccinology. Which begs the question that if other drugs coming to market do not have immunity, then why do vaccines? We are collectively told (marketed to) that for example, the co-vid vaccine is completely safe and effective. If this is the case, then why are all vaccine manufacturers and healthcare personnel administering them, protected with immunity from lawsuit? Could one not infer that (as an example) if the product OxyContin does not have immunity from suit, however that a co-vid vaccine does have immunity from suit, that perhaps the protection is in place specifically due to the increased relative risk of co-vid vaccine compared to OxyContin? One does not have to be "anti-Vax" in order to question scientifically and ethically the legitimacy of immunity/indemnity in vaccinology, especially when there is also legal mandate for such a Medical Product/Procedure. It is responsible science to ask tough questions such as this. Is this indemnification justified, and if so, how? Also, by pairing mandate and lawsuit immunity, are we inadvertently facilitating unnecessary exposure to risk on the part of the patient, of which, they have no real recourse?
Article for reference: Covid vaccine: You can't sue Pfizer or Moderna over side effects (cnbc.com)
Therefore, the question is posited to the reader. Should Healthcare providers, institutions, and manufacturers enjoy legal immunity from the very services and products they manufacture or offer to the public? In particular should the same product or service have both legal immunity and mandated use? Is this fair, does it erode public trust, and is it safe?
With great power, comes great responsibility. Where there's Risk, there must be choice.
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