Trial lawyers and other groups urge Newsom not to grant nursing homes liability immunity

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By Sarah Downey | Northern California Record | May 3 2020

Chicotel |

With the COVID-19 pandemic causing extreme infection rates at nursing homes across California, some health care trade groups have been calling for immunity protection from litigation, a move that nursing home reform backers say would lead to more deaths.

Nursing home residents have already lost critical protections under COVID-19, largely due to families no longer allowed in-person visits to prevent further spread of the virus, Tony Chicotel, staff attorney with California Advocates for Nursing Home Reform (CANHR), said in an email response to the Northern California Record.

“Government surveyors and the long-term care ombudsman programs have been sent to the sidelines, our minimum staffing requirements and other key regulatory requirements have been suspended, and residents’ families and friends are almost entirely in the dark,” Chicotel said. “Legal liability is the only light left by which to examine the conduct of nursing homes and the only remaining check against reckless decisions that fuel abuse and neglect.”

Meanwhile, President Donald Trump on Thursday pronounced May “Older Americans Month” and said he was convening a “Coronavirus Commission for Safety and Quality in Nursing Homes.”

“This commission will be composed of leading industry experts, doctors and scientists, resident and patient advocates, family members, infection and prevention control specialists, and state and local authorities,” Trump said in a report posted on ABC News. The commission will convene this month, “and issue recommendations for further steps we can take to protect our nation’s seniors.”

The administration also will introduce a new rule that mandates nursing homes report coronavirus cases directly to the CDC, with data available online for public viewing.

It’s unclear how new recommendations at the federal level might affect decisions by states to limit the legal liability of nursing homes.

On April 9, six health care organizations, including LeadingAge California, wrote to Gov. Gavin Newsom, asking for liability immunity amid the coronavirus emergency.

“In this time of crisis, care providers must be able to observe, evaluate, and respond to rapidly-changing conditions and events; the prospect of being subjected to future lawsuits would burden and slow these decisions, threatening greater loss of life throughout California,” the letter states.

LeadingAge did not respond to a request for comment from the Record.

“The April 9 letter from the health care industry to Governor Newsom requesting broad immunity relied on a crisis of resources that has not come to pass. They don’t need this,” Chicotel said. “The idea that health care providers may be held accountable for unreasonable or reckless decisions they are making should be embraced as bulwark for patient safety, not disregarded as a pandemic nuisance.”

In a letter sent to Newsom on Tuesday, the Consumer Attorneys of California (CAOC), CANHR, and other groups jointly called for no liability immunity.

“Current law already protects health care providers and volunteers from unwarranted liability during a declared emergency and for acting in a volunteer capacity under the Good Samaritan laws,” the letter states. “The proposed Executive Order would go far beyond these laws by immunizing all health care facilities, personnel, equipment, private nursing homes and assisted care facilities from reckless and grossly negligent conduct during the entire period of the declared emergency (March 4, 2020- ?), taking away any real (per your directive) legal recourse for families who are harmed. The broad immunity would also leave bad actors free of accountability for their actions.”

Before any Executive Order is issued, Chicotel urged people to make their concerns known to the governor’s office.

“In nursing homes, there is a significant number of marginal providers who were chronically unable to meet minimum standards prior to the pandemic,” Chicotel noted. “It is doubtless that years of shaky care practices have made nursing homes so vulnerable to the pandemic. A grant of immunity would seem like an endorsement of these poor practices, removing accountability and freeing facilities to put their own interests over those of its residents and to make poorly deliberated or reckless decisions.  Immunity would legalize elder and disabled adult abuse, sending a clear message that accountability has become another casualty of COVID-19.”