Covid lawsuits and inquiries are looming – but blame won’t prevent future pandemics | Laura Spinney

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Earlier this month, proceedings opened in Austria in a civil suit brought against the authorities by the widow and son of a man who died of Covid-19 after staying in Ischgl, the ski resort widely regarded as having hosted a super-spreader event early in the pandemic. The week before, former French health minister Agnès Buzyn was ordered by a court to answer, essentially, for the government’s lack of anticipation of the pandemic.

In the UK, meanwhile, the government has promised a public inquiry into the handling of the crisis. It’s due to start next spring. Those pushing for it to begin sooner argue that the lessons learned could still save lives, but apportioning blame is another function of a public inquiry. The finger of blame has hovered over this pandemic since the beginning, and now it is tapping on actual shoulders.

It’s understandable that people who are grieving should want answers, and likely that governments could learn lessons that would save lives before this pandemic is over. It’s far from clear, however, that the blame game will help the bereaved or ensure that any of us are better protected against future pandemics. In fact, it could do the opposite.

First, finding blame among those who coordinated the pandemic response at local or national levels diverts attention from those cross-border human activities, such as the industrial-scale farming of animals, that inflate the risk of a pandemic happening in the first place.

Second, all the efforts to identify culprits are illuminated by the incandescent glow of hindsight, when even scientists were in the dark at the time of many of the events in question. Even in hindsight, it’s difficult to assess whether a given official decision was justified in terms of lives saved. Whose lives? Over what timeframe? Valued how? If people in positions of authority know that whatever they do they will be criticised – being accused of underreacting or overreacting – the danger is they’ll do nothing at all next time.

This is one of those cases where history is instructive. In 1918, US president Woodrow Wilson prioritised the war over the worst pandemic in modern history – which killed many more Americans – and nobody really complained. Fifty years later, when another flu pandemic erupted, Gerald Ford was advised that the US could be facing something similar and announced a mass vaccination campaign. That pandemic turned out to be mild compared with 1918, and the president drew criticism from across the political spectrum. Buzyn can console herself that, during the even more anticlimactic 2009 flu pandemic, her predecessor in the French health ministry, Roselyne Bachelot, was ridiculed for having to cancel tens of millions of vaccine doses that she had ordered pre-emptively.

The depressing lesson is that history is hopelessly uninformative about the next pandemic, and crystal clear that the politician who does nothing to prevent it will be more warmly thanked at the ballot box than the one who does.

There’s a novel spin on the blame game looming: lawsuits against those who negligently or intentionally caused others to become infected with Covid-19 by, for example, refusing to get vaccinated against it. No such suit has been brought yet, but legal scholar Dorit Reiss of the University of California Hastings College of the Law believes it’s only a matter of time, and that it will come in one of two forms.

The first is a civil suit brought by an individual who contracted Covid, or their relative, against another individual such as a teacher or care home worker who refused a vaccine and from whom the plaintiff’s infection can be easily traced (the school or home might also be sued, in this scenario). The second is a class action against an organisation that spread vaccine misinformation, such as Children’s Health Defense, chaired by Robert Kennedy Jr, or America’s Frontline Doctors.

If neither kind of suit has been announced so far, it’s because both face big hurdles. Without dwelling on the legal niceties, which depend on the jurisdiction in which the case is brought, these fall into three main categories: proving that the defendant had a duty to protect others; if they had a duty, proving that they behaved unreasonably; and proving that they caused harm, in this case in the form of infection. Proving causation is the toughest of these, but as more people get vaccinated and the conditions for Covid transmission are better understood, it’s getting easier. Suing an organisation for putting out misinformation faces an additional hurdle – the right in many jurisdictions to free speech.

The first such case will be a fascinating test whose outcome is hard to predict. Take the UK, where the law already tends to place the individual before the collective. In recent decades, people who have suffered vaccine injury have generally been compensated through a no-fault damage payment scheme rather than via the courts. Such schemes – which also exist in the US and elsewhere – embody the notion that any risk associated with conferring a collective benefit was not actively created and is therefore nobody’s fault. The same could be argued for someone who withheld that benefit: they didn’t choose to pose a risk to others.

The US is a good candidate to host a test case. So is Israel, because as Ido Baum, a legal commentator for Haaretz told me, it’s a highly litigious country where “filing a lawsuit for getting an email spam is almost a sport”, and ordinary people routinely use the courts to drive social change. Yet when Baum wondered aloud in a recent column about why a case hadn’t yet been brought for negligent Covid infection in Israel, he was surprised by the response: readers overwhelmingly disapproved of such a step.

Even if a test case was to fail, says legal scholar Tsachi Keren-Paz of the University of Sheffield, it would probably shift the debate over where the balance should be struck between individual and collective rights and responsibilities. That debate is already under way, with proposals ranging from holding negligent Covid spreaders liable for the costs of tracking and containing the outbreak they caused, to criminalising their behaviour as dangerous driving is criminalised. On one side are those who want more legal protection for the collective, on the other those who argue that coercion is not the way, and could backfire by pushing the vast majority of vaccine refusers – who merely have doubts or questions – into more extreme positions.

Covid is already changing the law, as scholars grapple with the legality of the many unprecedented interventions we’ve seen in the past 20 months – from lockdowns and furlough schemes to mask or vaccine mandates. The question is, should those changes make the blame game easier to play? If our goal is to be better protected the next time we face such a crisis, the answer is probably no. It would be better to ask why our social contract is unravelling, and what we can do to bolster solidarity. The public inquiry that managed to tackle those questions, in a no-fault environment, would serve a useful function indeed.

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