The new law, at Section 1, the "Tennessee COVID-19 Recovery Act," prohibits claims "against any person for loss, damage, injury, or death arising from COVID-19 unless the claimant proves by clear and convincing evidence that the person proximately caused the loss, damage, injury, or death by an act or omission constituting gross negligence or willful misconduct."1 The protections are applicable to claims pursued against a broad category of "persons" associated with health care providers, business entities and schools, as well as to claims pursued against governmental entities or employees.
The term "arising from COVID-19" is very broadly defined as "caused by or resulting from the actual, alleged, or possible exposure to or contraction of COVID-19, or caused by or resulting from services, treatment, or other actions in response to COVID-19."2 The Act provides that "arising from COVID-19" "include[es], but [is] not limited to:
- Implementing policies and procedures to prevent or minimize the spread of COVID-19;
- Testing;
- Monitoring, collecting, reporting, tracking, tracing, disclosing, or investigating COVID-19 exposure or other COVID-19-related information;
- Using, designing, manufacturing, providing, donating, or servicing precautionary, diagnostic, collection, or other health equipment or supplies, such as personal protective equipment;
- Closing or partially closing to prevent or minimize the spread of COVID-19;
- Delaying or modifying the schedule or performance of any medical procedure; or
- Providing services or products in response to government appeal or repurposing operations to address an urgent need for personal protective equipment, sanitation products, or other products necessary to protect the public."3
"Person" is also defined broadly as an individual, health care provider, corporate entity, trust, religious organization, association, non-profit organization, "or any other legal entity whether formed as a for-profit or not-for-profit entity."4
To make a claim under the Tennessee COVID-19 Recovery Act for acts "arising from COVID-19," a claimant must file a verified complaint that pleads "specific facts with particularity from which a finder of fact could reasonably conclude that the alleged loss, damage, injury, or death was caused by the defendant's gross negligence or willful misconduct."5 In addition, for any claim "based on exposure to or contraction of COVID-19," a claimant "must also file a certificate of good faith" stating that a qualified expert physician "has provided a signed written statement that the physician is competent to express an opinion on exposure to or contraction of COVID-19 and, upon information and belief, believes that the alleged loss, damage, injury, or death was caused by an alleged act or omission of the defendant or defendants."6 The failure to meet these requirements makes the action subject to dismissal with prejudice.7
Sections 2 and 3 of the new law amend the existing Tennessee Governmental Tort Liability Act (GTLA). These Sections recognize immunities for governmental entities and employees for injuries arising out of "or in connection with any loss, damage, injury, or death arising from COVID-19," "unless the claimant proves by clear and convincing evidence that the loss, damage, injury, or death was proximately caused by an act or omission by the entity or its employees constituting gross negligence."8 They further prohibit claims against governmental employees "for any loss, damage, injury, or death arising from COVID-19 … and proximately caused by an act or omission of the employee within the scope of the employee's employment for which the governmental entity is immune, unless the claimant proves by clear and convincing evidence that the loss, damage, injury, or death was caused by an act or omission that was willful, malicious, criminal, or performed for personal financial gain."9
Similarly, Section 4 of the law, which applies to claims raised in the Tennessee Claims Commission, acknowledges a potential waiver of sovereign immunity for state entities and employees if a claimant "proves by clear and convincing evidence that the loss, damage, injury, or death was proximately caused by an act or omission of the state or an employee or agent of the state constituting gross negligence."10 These Sections of the new law also extend the stringent pleadings...
