Senior advocates to Newsom: Don’t give immunity to healthcare providers during coronavirus crisis

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By BRENDA GAZZAR | Daily Breeze | April 20 2020

OAKLAND, CALIFORNIA – MARCH 8: California Governor Gavin Newsom speaks to members of the media regarding the Grand Princess cruise ship at Elihu M. Harris State Office Building in Oakland, Calif., on Sunday, March 8, 2020. The ship is currently offshore and is expected to dock at the Port of Oakland tomorrow. (Randy Vazquez / Bay Area News Group)

Senior and disability rights advocates are calling on Gov. Gavin Newsom to oppose a proposed executive order that would give healthcare providers immunity from claims stemming from their conduct in treating patients in the coronavirus era.

“If in fact, the governor issues this directive and this order, what they’re saying to all healthcare providers is ‘anything goes and you won’t be held responsible,’” said Pat McGinnis, executive director of California Advocates for Nursing Home Reform, during a virtual news conference Monday.  “There will be no administrative, there will be no criminal or civil liability for anything you do and that’s a very, very dangerous position to take.”

Due to the COVID-19 crisis, staffing requirements at nursing homes have already been suspended, McGinnis noted. Residents are no longer able to have visitors, including long-term care ombudsman representatives who assist residents with health, safety and personal preferences. Even healthcare inspectors have been sidelined, she said.

“We’ve suspended most of the rights for nursing home residents,” McGinnis said. “Now the industry wants to suspend their right to sue for elder abuse, including elder financial abuse.”

Earlier this month, a coalition of associations that includes healthcare facilities, residential care facilities and physicians formally asked Gov. Gavin Newsom that such facilities and doctors be immune from any administrative sanction or criminal or civil liability for any injury death or loss allegedly resulting from their acts in treating COVID-19 patients. A decision on the matter is expected in the coming days.

“The COVID-19 pandemic is projected to affect so many people that health care providers will be forced to allocate scarce medical resources among too many patients who need them,” the April 9 letter to the governor stated. “Given this stark reality, we must have one goal: to save as many lives as possible.”

The letter went on to say that an executive order issued by the governor would provide “a level of liability protection adequate for care providers to save Californians’ lives.” It also stated that providers need support to make the best possible decisions, including protection from future legal actions, “as long as that liability protection does not excuse willful misconduct.”

The request noted several kinds of challenges the healthcare system is expected to face, including a lack of ventilators in hospitals, obstetricians agreeing to care for respiratory patients due to a lack of pulmonologists and skilled nursing facilities suing for alleged deficient care rendered by staff who had not received full training due to staffing shortages.

“As our care providers make these difficult decisions, they need to know they will not be prosecuted or persecuted,” the letter stated. “This request is made with the deep understanding that every care provider is doing all they can to protect all Californians during this unprecedented crisis.”

But others argue the proposal would offer providers “blanket immunity” that could immunize dangerous and even reckless conduct.

More than 1,200 people had lost their lives in California from COVID-19 as of Monday, according to Newsom. Older adults are among those higher at risk from serious illness as a result of the disease.

Scott Akrie, whose father Costell Akrie was a resident of Gateway Care and Rehabilitation Center in Hayward before he died of the virus, opposes the potential order. His father was sent to the center for physical rehab and the Alameda County District Attorney’s Office is reportedly investigating the facility amid the deaths of at least 13 residents who had contracted the virus.

“What’s being requested is overly broad,” he said. “There should be no excuse for anyone to violate the law and to take ordinary precautions even in an extraordinary situation.”

The letter to the governor was signed by the California Hospital Association, the California Association of Health Facilities, the California Assisted Living Association, the California Medical Association, the California Association of Health Plans and LeadingAge California.

The governor’s office did not return a request for comment on Monday.

Following concerns voiced by advocates, the California Department of Public Health released Friday a list of nursing homes that had reported cases within the prior 24 hours.  With 86 percent of such facilities in the state reporting, 3,030 COVID cases were reported among patients and staff members in 258 facilities.

That data, however, did not include the number of COVID-related deaths at each facility. Newsom said the state is working to provide that information to the public.

Newsom also said Monday that the state was also about to release the number of COVID cases and deaths in other adult and senior care centers.