Elder Advocates: Newsom Close To Giving Health Care Providers Legal Immunity During Pandemic
Wednesday, April 29, 2020
Photo by Matthew Bowler
Advocates for elderly people say Gov. Gavin Newsom is about to issue an executive order giving broad legal immunity to nursing homes, assisted living facilities and other health care providers during the coronavirus pandemic.
“We understand that Governor Newsom is likely to sign an order,” said lawyer Mike Dark of California Advocates for Nursing Home Reform. “We expect it will come out sometime in the next few days after work is completed on some related guidance.”
California hospitals, medical workers, nursing homes and assisted living facilities want Newsom to grant them immunity from criminal prosecution and all lawsuits related to the COVID-19 state of emergency.
In an April 9 letter to the governor, health care groups said that level of protection was needed to save lives.
“Sadly, in the coming days and weeks [health care providers] will face wrenching, life-threatening decisions in managing scarce resources amid arduous conditions,” the letter stated.
But Dark and other advocates say they fear the immunity will excuse reckless and dangerous conduct.
“Reckless conduct is conduct when the defendant knows what they’re doing is dangerous and they don't care and they do it anyway and people are hurt or die as a result,” Dark said. “If we immunize reckless conduct, truly the last safety net that most residents have in nursing facilities will fall away.”
But he added that the health care provider lobby in Sacramento is “very powerful and very well-moneyed” and may have the governor’s ear.
The California Association of Health Facilities, which represents nursing homes, and the California Assisted Living Association declined to comment Tuesday.
The Governor’s office also would not comment Tuesday, saying in an email: “We’ll let you know if we have anything on this.”
Senior care facilities nationwide have bore the brunt of the COVID-19 crisis. San Diego County has experienced the same trend, with 49 percent of reported deaths linked to senior care facilities.
In March, a federal survey at nursing homes found that 36 percent of the facilities inspected didn’t follow proper hand-washing rules, and a quarter of nursing homes failed to show they knew how to use personal protective equipment, viewed as vital in stemming infections.
Dark expressed worry that if Newsom gives providers what they want, California may see more instances of neglect like what happened earlier this month at a Riverside nursing home where staff failed to show up to work and 83 residents had to be evacuated.
Plaintiff’s lawyers are joining advocates in opposition to the potential action. They say the breadth of what the state’s health providers are asking of Newsom is extraordinary.
“We would argue that everything is covered by this broad immunity which is totally inappropriate because immunities already exist in this circumstance,” said Micha Star Liberty, president of Consumer Attorneys of California.
She said existing laws give the health care industry legal protections during an emergency. She added that California’s malpractice laws are already some of the most industry-friendly in the nation, and said giving these institutions even more protections would be “unnecessary.”
“It’s really difficult to understand how and under what circumstances the governor is considering language this broad,” Liberty said. “As an organization, the consumer attorneys knew that something like this would be coming down the pipeline because we see this each and every time from the medical-industrial complex.”
San Diego trial attorney Paul Pfingst, who represents hospitals and members of the medical community, said he pities senior care facilities.
“Every nursing home provider is at great liability because there is no template for dealing with this virus,” Pfingst said. “The contagion issue for nursing homes is extraordinarily challenging. Even the emergency rooms have difficulty protecting against contagions in hospitals.”
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