Debate Erupts Over Covid-19 Liability Shield for Nursing Home Officials

A new investigation by the journalism project Too Much Information, co-published in the Guardian,  reports that less than two years after the Greater New York Hospital Association contributed more than $1 million to a committee supporting New York governor Andrew Cuomo’s 2018 reelection campaign, he signed a little-noticed provision in the state budget legislation “shielding hospital and nursing-home executives from the threat of lawsuits stemming from the coronavirus outbreak.” The report describes this budget provision as “one of the nation’s most explicit immunity protections for health care industry officials, according to legal experts.”

Critics of the legislation argued that it “removed a key deterrent” against potentially lethal corner-cutting at hospitals and nursing homes, according to the report, and that immunity is directly correlated with high death rates at nursing homes in New York and states with similar liability shields. In New York, the report notes, more than five thousand people have died in nursing homes during the outbreak.

Although several of the governor’s secretary’s family members are employed by one of the GHNYA’s lobbying firms, the governor’s office stated that the secretary did not negotiate the bill, and that nobody at the firm in question lobbied for it. The GHNYA also told Too Much Information that it does not lobby on behalf of nursing homes. An advisor to the governor said that the bill was “intended to increase capacity and provide quality care” at nursing homes.

A group of New York legislators are currently advancing legislation that would repeal the immunity provision, which they argue is connected to increased fatalities in nursing homes, according to the report. ` “It is now apparent that negligence by administrators and executives of nursing homes has occurred at an extraordinary degree,” these lawmakers said in a memo. They argued that the immunity provision “egregiously uses severe liability standards as a means to insulate health care facilities and specifically, administrators and executives of such facilities, from any civil or criminal liability for negligence. Repealing this article is a much-needed step to holding health care administrators accountable and doing everything possible to stop even more preventable deaths from happening.”

The GHNYA described the liability protections as a means of protecting healthcare workers, according to the article. In a memo in April, it told its members that “You and your heroic workers have enough to agonize over without having to worry about liability for decisions and actions made under extraordinarily challenging circumstances.” Critics of the provision argued that it was designed “designed to make it easier for nursing home corporations to profit off unsafe business practices,” however.

According to an analysis by New York assemblyman Ron Kim, based on data described by the New York Times, immunity shields are connected to higher Covid-19 death rates. Kim suggests that “more than three-quarters of total nursing-home deaths from COVID-19 come from states that have granted corporate immunity to health care facilities.” His analysis concludes people in states with corporate legal immunity are “7.5 times more likely” to die from the disease than those in states without corporate legal immunity. An advisor to the governor said that Kim’s analysis is a “flaming hot pile of bad math and inaccurate, skewed metrics.” He argued that the harder hit states were those on the east coast in which the virus was seeded by travelers from the west coast, “greatly helping the West Coast” mitigate the virus after travel from China was banned. The adviser said that the law “builds on NY Good Samaritan laws” that provide immunity to people who offer medical help at the scenes of accidents.

Another member of the Cuomo administration argued in a recent press conference that death rates in New York nursing homes “are not anomalously high,” and went on to suggest “that the state’s ‘confirmed’ death rates are in line with other states.” But as the report notes, some have suggested that nursing homes are in fact undercounting Covid-19 fatalities.

The attorneys at the Law Offices of Thomas L. Gallivan, PLLC work diligently to protect the rights of nursing home residents.  Please contact us to discuss in the event you have a potential case involving neglect or abuse.

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