By Nick Kipley, Daily Journal, April 27 2020
Organizations representing nursing homes, retailers, trucking, agriculture, restaurants and grocers are lobbying Gov. Gavin Newsom for sweeping immunity against lawsuits related to COVID-19 while lawyers and scholars up and down the state hold conflicting views of this proposed emergency suspension of the tort system.
Kyla C. Powell, president and CEO of the Civil Justice Association of California, sent one of the appeals last week and said it came about because of growing concerns over inadequate protection from liability as there is no clarification that there are immunity protections applying to those businesses under the Emergency Services Act.
“It would ensure businesses deemed essential are protected and shielded from frivolous lawsuits in connection with the critical services that they provided during the emergency period,” Powell wrote of the request.
A legal precedent can be found in California’s Government Code Section 8657.5, the Emergency Services Act, which grants immunity from civil liability to private businesses during times of war or states of emergency except in instances where the liability was caused by a grossly negligent act or omission, or willful or wanton misconduct.
“I don’t think there are any arguments against the request the letter is making. The order would still allow for suits for gross negligence,” Powell said. “This only applies to goods and services provided in connection with an emergency, for the duration of the emergency.”
However, several plaintiffs’ attorneys strongly disagree. “Burden of proof in gross negligence is very difficult. Normally this wouldn’t have a chance of passing but elected officials — and I’m in that barrel too — we’re all recognizing we could’ve done better,” regarding the spread of the virus, said R. Rex Parris, founder of Parris Law Firm and mayor of Lancaster. “The thing I realize as a mayor is we don’t have the resources to enforce the laws. The only reason our system of laws work is because there is civil liability in addition to criminal liability. Otherwise people would have very little incentive to follow most laws. We don’t even have a court system now.”
“If you take away the tort system, we’re all sitting ducks,” he added.
“Well without emergency medical systems and care under this environment we’re all sitting ducks,” countered Thomas Hiltachk, name partner of Bell, McAndrews & Hiltachk LLP in Sacramento.
Hiltachk referred to the Civil Justice Association’s letter as well as another to the governor signed by hospital associations and senior care facilities seeking the same emergency protections from civil liability afforded to “physicians, surgeons, hospitals, pharmacists, respiratory care practitioners, nurses and dentists, veterinarians and registered veterinary technicians,” under Section 8659 of the state Government Code.
“Well I certainly don’t speak for the senior care facility associations but the fact that the hardest hit victims have been residents residing in longterm care facilities can’t be ignored,” Hiltachk said. “We have a lot of people receiving constant around-the-clock care who are most vulnerable to this virus. They need to be able to be taken care of without the caretakers worrying about opening them up to civil liability. It shouldn’t matter whether you’re receiving care in an emergency room, an ICU or one of these senior care facilities.”
Hiltachk argued that essential workers in senior centers, grocery stores and the like have basically have been deputized as public employees and should fall under the broad liability protection of the Emergency Powers Act.
“We told grocery stores, ‘Stay open’ and those people had to keep coming to work and now they’re at risk. They’re no different than the doctors and nurses who have to stay at their jobs. There are some parallels that they are effectively, in my view, public employees, because we’ve deemed them to be essential,” he said. “As a matter of policy I think there’s certainly precedent for the state to grant immunity under emergency conditions.”
Parris found the use of the two Government Code sections inventive. “That’s really clever!” he said. “But seriously? You’re in a nursing home. How is this different than a flu season as far as the nursing home is concerned? It shouldn’t matter what’s going on outside if you properly follow protocols. To try and shoehorn this emergency into some kind of immunity — it betrays our whole concept of civil justice, which is a very simple contract: Behave reasonably and you have no liability.”
The letter from the health care groups makes the same requests of the governor, asking for an executive order related to liability protection from lawsuits related to COVID-19 for health care facilities, residential care facilities, nursing homes, health care service plans, physicians and other medical professionals and their employees.”
It cites hospitals facing shortages of masks and ventilators as examples, alongside hypothetical instances such as “an assisted living facility resident contracting COVID-19 from an employee, even though the facility used proper screening techniques when employees arrived at work.”
This agglomeration of hospitals, physicians and nursing homes raises red flags for lawyers who have covered senior abuse cases.
In Beverly Hills, elder rights attorney Stewart Levin said he is troubled by the request for sweeping immunity for care senior care facilities.
“There are no valid reasons to suddenly alter California law or standards due to the coronavirus situation,” Levin said in an email. “Civil liability for malpractice, or for elder neglect, at nursing facilities protects our seniors from harm. The immunity requested by the nursing home lobby is not appropriate under the circumstances and could allow nursing facilities to provide inadequate and even harmful care to our elderly without the important consequences of civil liability.”
The Daily Journal found it difficult to find lawyers willing to go on the record defending nursing homes. Several picked up their phones, were asked about the letter, wished good luck with the article and politely declined to comment.
Proponents of the request argue they should be granted immunity on the grounds that medical facilities lacking crucial supplies will correlatively be forced to provide a lower standard of care due to scarcity. “Even though we are flattening the curve of the virus, all of the experts say we have not yet hit our peak.
This is a scenario we have never imagined and some care to some people may have to be delayed due to circumstances beyond our control,” said Jan Emerson-Shea, spokesperson for the California Hospital Association. “Given the extraordinary and unprecedented series of events we find ourselves in, the signatories to this letter wish to be shielded from any administrative sanctions or civil liability during this crisis. This would not cover willful misconduct.”
The San Francisco non-profit California Advocates for Nursing Home Reform also views the requests as a gateway to elder abuse. Staff lawyer Michael Dark said the request, if granted, would undo the only safety net a very vulnerable population of seniors has left in the COVID-19 crisis.
“Right now at nursing homes in California there are restrictions preventing any visitors including family from going in. These visitors provided care: brushing teeth and spotting issues like poor infection control and under-staffing,” Dark said, “State and federal regulators have also stopped going into these facilities. They’re making phone calls instead of inspecting them. The tort system is the last safety net the nursing home has left.”
Dark said the letter’s example of a resident contracting the virus from a worker who uses proper techniques ignores the history of infection control and understaffing problems that have existed for years in longterm care in California.
“Those problems simply didn’t go away in the last six weeks,” Dark said, “They’re still having employees who are sick still come to work. Nursing homes haven’t learned how to wash their hands properly. They’re minimum wage employees who are largely untrained. Before this virus ever happened, California nursing home operators had a track record of violations that went back decades — abuse, infection control, neglect — and this proposal is an attempt to just plaster that over.”