Executive Session
Floor Speech
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Mr. CORNYN. Madam President, after every natural disaster, after every major emergency, there is always a period of response--that initial triage. Think about performing search and rescue operations, providing medical care, and setting up emergency shelters. You are moving quickly to complete these time-sensitive tasks to get everyone to safety and minimize the loss of life.
At some point, though, you begin to transition to recovery--clearing the debris, restoring power, rebuilding, and eventually trying to return to life as normal. As always, there will be a period of transition between those periods in which you continue to focus on the short-term response while you plan for the longer term recovery. While we face a much different type of crisis today, I believe the same principles apply.
Our heroic healthcare workers continue to respond to this virus on the frontlines. Our farmers, our ranchers, our truckers, our grocery store employees, and food banks are ensuring people have food on their tables. The mailmen, delivery drivers, waste collectors, and other workers in critical sectors are keeping the cogs of our society and our economy running, and slowly but surely, recovery is happening too.
In Texas and other States across the country, businesses are welcoming customers through their doors for the first time in a while. Parks are beginning to reopen, and schools are making plans for the fall. Every day, the needle is moving in a positive direction, but I am worried that, without some protections for these workers, these businesses, these churches, and these food banks, we are going to reverse course or stop them dead in their tracks. We are already seeing lawsuits piling up that claim somebody did this or did that in a corona-related incident. Unfortunately, there is an economic incentive to use as a cash cow the virus that has infected some 1.5 million Texans, and we are setting up for what could be one of the biggest bonanzas in history in terms of litigation.
You had better believe that those who could find themselves on the receiving end of these lawsuits are taking notice. A recent survey by the National Federation of Independent Business found that nearly 70 percent of small business owners are concerned about liability claims and that hospitals are cautious about resuming procedures, like organ transplants or cancer biopsies, because they could get sued as well. Even if you have done everything the public health officials say you should do and even if you have accommodated every request that the President, the Governor, or the mayor has made, you could still be sued. Even if businesses and hospitals follow all of the relevant guidelines and act in good faith, they could end up fighting very long and very expensive lawsuits. They could end up winning those lawsuits, but they could also end up going bankrupt in the process because defending a lawsuit is not cheap. At a time when we want people to focus like a laser on reopening their businesses and refilling these jobs, we can't allow that incentive for a lawsuit lottery to bleed our health workers dry and deter our recovery.
Congress needs to take action to prevent these opportunistic lawyers from using this crisis to make money and to, at the same time, hurt our economy and hurt our recovery. Leader McConnell and I and others are working on a proposal that would put commonsense reforms in place and protect those who act in good faith from being sued into oblivion. I want to be absolutely clear about the goals of this legislation. There is no effort to pass a blanket immunity. There is no effort to protect bad actors who willingly put their patients, their employees, or customers in danger. What we are talking about is temporary and targeted liability protection for those who act in good faith and follow all of the relevant public health guidelines and direction.
First, we must protect the healthcare workers who are on the frontline of this crisis. These men and women have made tremendous physical and mental sacrifices while serving during this unprecedented time, and we simply can't allow them to be taken to the cleaners by those who are looking for a payout.
More than a dozen States have already provided protections for healthcare workers by raising the threshold for medical malpractice lawsuits. The Democratic Governor of New York, Andrew Cuomo, has issued an executive order granting healthcare workers immunity from civil liability. Let me make sure people get this. The Democratic Governor of New York has issued an executive order granting healthcare workers immunity from civil liability. Again, this is not a blanket immunity. There are exceptions for gross negligence and willful conduct.
If limiting liability makes sense in New York, then I think it certainly makes sense elsewhere. We need to provide the same level of protection for healthcare workers all across the United States so they can operate without fear of having to defend themselves in lawsuits when they are doing their very best, in a time of crisis, to, in good faith, follow all of the appropriate guidance. Yet we can't stop there. We have to provide similar protections for the workers, the businesses, the schools, the nonprofits, and other institutions that are critical to our recovery.
Think about small business owners--70 percent of whom I know are worried about liability lawsuits, which is according to the National Federation of Independent Business. Once they receive the green light to open their doors, they have to make a very important decision: Is it worth the risk?
Let's say that you are a restaurant owner who has gone through the CDC's newly released decision tree for restaurants and bars and that you are prepared to implement all of the recommended health and safety actions as well as to monitor your staff. There is nothing stopping the first person who walks through the door from suing you in a few weeks because one believes one contracted the virus at your restaurant. It is not just businesses that are facing these types of decisions. Any nonprofit organization or agency that serves the public is in a similar position, even if it has gone to great lengths to comply with public health recommendations.
As our public schools, colleges, and universities weigh decisions about reopening this fall, liability protections are going to play a major factor. Last week, the Committee on the Judiciary held a hearing on liability protections. One of the witnesses we heard from was Lee Tyner, who serves as the general counsel for Texas Christian University in Fort Worth, TX. In his testimony, Lee called this the ``cliff problem.'' He said that this is what his University of Virginia law school professor used to describe as being an uncertain standard of care. A liability cliff is some sort of line that would be catastrophic to cross.
If you know where that cliff is, you are able to make good decisions about how far you are willing to go and what kind of risks you are willing to take, but if you do not know exactly where it is, then uncertainty will likely lead you to avoid the area altogether. In this case, as Lee pointed out, our country needs our colleges and universities to walk toward the cliff but not to go over it, just as we need healthcare workers, businesses, nursing homes, and nonprofits to do the same. Yet we can't ask them to do it blindly or in the dark or without providing the needed clarity so that they can manage their risks.
I think what is so different about this pandemic is that people get so much contradictory and conflicting information from a variety of sources. Most of us know how to manage risk in our lives, but it is hard to manage uncertainty, and that is what we are asking the Senate and the Congress to do is to provide some certainty in the midst of this uncertainty. These workers and institutions are critical to helping our response and recovery move forward, and we can't ask for or expect them to make decisions without having some level of certainty.
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