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Is Industry Using the Coronavirus Pandemic to Gain Special Immunity?

05/4/2020
Medical Malpractice
BY

Corporate Protections Asked for

Hospitals and nursing homes are selfishly seeking protection from civil and criminal lawsuits as the coronavirus spreads across the country. Sadly, they are succeeding. And, these facilities are not small hospitals or nursing homes, they represent some of the largest conglomerates, highly profitable, in the nation.

Governors in six states and counting have either enacted executive orders or passed emergency legislation providing institutional immunity from negligence claims. Patient advocates and family members are frustrated and fearful.

“I can’t even believe this is a topic of discussion,” Anny Figueroa, whose mother was staying at the New Jersey rehabilitation center where law-enforcement officials found 17 bodies in April, said in an NBC News article titled “Nursing home industry pushes for immunity from lawsuits during coronavirus emergency.”

According to the article, Figueroa’s family “was kept in the dark about her mother’s coronavirus diagnosis, forcing her to demand that she be transferred to a hospital, where she is now in intensive care. Figueroa said she fears immunity will let facilities…continue to neglect and abuse these helpless individuals because now they are not liable.”

The states that have given hospitals and nursing homes the immunity they lobbied for include New York and New Jersey – two of the hardest hit – but do not include California and Florida, which also are hotspots. However, the associations representing healthcare facilities and insurance corporations have the ears of Gov. Gavin Newsom in the Golden State and Gov. Ron DeSantis in the Sunshine State.

“In Florida, where 20 percent of the deaths have been among residents in long-term care facilities, the for-profit nursing home industry has pressed the governor’s office for immunity in an executive order that would explicitly name skilled nursing facilities like that in New York,” according to the NBC News article. “A spokesperson for Gov. Ron DeSantis told NBC News that no decision has been made.”

Nick Van Der Linden, of LeadingAge Florida, an association that represents nonprofit nursing homes, described the state’s immunity request as “routine.”

“We are continuing to work with the language that everyone can agree on,” Van Der Linden said, noting that he is hopeful DeSantis will approve the request.

Besides patient advocates and family members raising concerns, so is another segment of society: personal-injury lawyers. Karen Terry and Matthew Schwencke, who have brought litigation against Florida nursing homes, are two.

“The nursing homes and care facilities I am concerned about the most are those run by large corporations and conglomerates. They have shown a practice over the years of reducing staff to dangerous levels and pulling back on maintenance at the facilities for the sole goal of maximizing their profits,” said Karen Terry.

Matt Schwencke observes, “the places I have pursued claims against over the years have followed the principle that profits are the single most important goal and patient care often comes up as a distant last.”

Laws that long have been on the books already exist to protect nursing homes and assisted living facilities, so why is there a need to pass new ones? There are no good reasons, but corporations see an opportunity they want to seize upon. They see the current pandemic as a way to get protections legislators have not been willing to extend to them.  

To make their case, patients must show a facility negligently deviated from the reasonable standard of care under the particular circumstances. No special protections are needed beyond what the law already provides.

Florida’s nursing home and assisted living corporations have displayed a tendency to ignore the laws governing them. Take the industry’s utter failure to comply with 2018 legislation requiring the installation of generators after hurricanes caused the death of far too many patients. As many as 32% of nursing homes still do not have permanent in place generators to protect patients against the loss of air conditioning and electrical power during a hurricane. How can we believe they will not take advantage of any special protections to maximize profits?

The Florida Health Care Association are actively pushing DeSantis. It sent a letter to Tallahassee pleading that “health care facilities and health care professionals are protected from liability that may result from treating individuals with COVID-19 under the conditions associated with this public health emergency” and “any health care facility or health care professional should have immunity from any liability, civil or criminal, for any harm or damages alleged to have been sustained as a result of an act or omission in the course or arranging for or providing health care services….”

The lobbying extends far beyond New York, New Jersey, California and Florida. Every state is a target.

“The insurance lobby is sending letters to governors in every state asking them to issue executive orders granting immunity…,” according to a Law360 analysis. “The orders would confer immunity not just for coronavirus treatment but for any care provided.”

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