School Boards Should Not Get Blanket Liability Protections for Reopening Decisions

The following is an opinion piece I wrote that was published in the Idaho Press Tribune.

It has long been established in every jurisdiction of our country, that those who provide certain products or services to the public and consumers can be held liable for providing those products or services without the exercise of reasonable care. As a practicing physician, I knew that if I provided a service or procedure to a patient and it did not meet the standard of what an ordinary and prudent physician in my specialty would have provided, and as a result, a patient was harmed, I could be held to account. No physician likes this, and being sued is professionally devastating, but I think we would all admit that we practice better medicine and document our care better because of this potential liability.

There are many things that Sen. Thayn and I do not agree with each other on. There is one thing that we are in agreement on – physicians should not be making policy decisions, e.g., whether to implement stay at home orders and whether and when to open schools. Physicians approach problems differently – we are all trained to do our very best for every single patient and to not harm any patient. Policy decisions necessarily weigh many risks – public health, the economy, social needs, employment, etc. Physicians without public policy and political expertise are poorly prepared to make these decisions.

While physicians should not make these policy decisions, where I strongly disagree with Sen. Thayn is the notion that medical or public health advice should be disregarded or discounted. The Governor, legislators and school boards should not be bound by medical or public health advice for the decisions they need to make, but on the other hand, it is irresponsible to not even consider it. My guess is that if Sen. Thayn needed tax advice, he would solicit that advice from a tax expert. Obviously, he doesn’t have to take that advice, but there is some peril in disregarding that advice. Similarly, my guess is that if he had a painful tooth, he would not take a pair of pliers to his neighbor and ask that the neighbor remedy his tooth problem. At a visit to his dentist, the dentist would diagnose the problem and then present Sen. Thayn with the options and the benefits and risks of each option. Again, the senator need not take that advice, or is free to get a second opinion, but it may be unwise to completely disregard or ignore that advice when doing so can lead to more serious oral health consequences.

So it is with our school boards. These boards are entrusted with the safety of our teachers and students. We are facing a pandemic with a novel virus. We are beginning to see consequences of COVID infections that we have previously been unaware. School openings are a difficult issue. Opening (or not) a school for in-person education requires the weighing of many considerations – financial; health and wellbeing of teachers, students and their families; risks to children of not opening schools, the impact on the economy and workforce, etc. These are not decisions for doctors, but for these boards.

There are times that a physician determines that the standard treatment is not the best option for a specific patient. But, when that is the case, we explain the basis for not using the standard treatment to the patient, and we document it. This should not result in liability if there is a good basis for this deviation. But, if we choose to ignore the accepted and best treatment available without informing our patient as to why, we may be held liable when the patient is harmed, if that harm is the result of our decision. As the legislature considers liability protections for school boards and businesses, I encourage us to require of those we are extending the protections to do the same. Explain to the public and document in their public records the basis for determining that non-medical reasons trump the medical and public health concerns, so that we can hold boards to account and a jury can determine whether that decision was negligent.