Should California’s health-care industry get blanket protection from COVID-19 charges, lawsuits?

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By Annie Sciacca | Bay Area News Group/Mercury News | Updated April 20, 2020

Lobbyists ask governor to use emergency powers to protect hospitals, nursing homes

California healthcare lobbyists have asked Gov. Gavin Newsom to use emergency powers to give them immunity against civil and criminal legal action in their handling of the COVID-19 outbreak, according to a letter obtained by this news organization.

In an April 9 letter, industry trade groups including the California Hospital Association, California Medical Association, California Association of Health Facilities, California Association of Health Plans, California Assisted Living Association, and LeadingAge California asked Gov. Newsom to issue an executive order that would make facilities, plans, doctors and healthcare employees “immune from any administrative sanction or criminal or civil liability or claim for any injury, death, or loss” that is alleged to have come from the care they provide during the state of emergency.

Representatives for the Governor’s Office did not immediately respond to a request for comment.

While the healthcare industry groups say such a move would be an important protection for their strained workers — even one that would save lives, as organizations make difficult decisions about how to focus care — advocates worry it would remove a layer of protection for patients.

“Effectively minimizing death and serious illness among the population as a whole entails distributing finite resources to those who have the greatest opportunity to benefit, thereby maximizing appropriate care for the greatest number of patients likely to benefit from these resources,” the healthcare groups wrote in the letter, noting that “providers need assurance they will not later be judged or sued when abiding by this framework, or when making related care decisions based on their best judgment and determination at the time.”

Other states have enacted similar orders, including Georgia, Illinois, New Jersey and New York. Some advocates, however, said that such a move would go too far.

“Granting immunity to nursing homes removes the only remaining safety net for vulnerable residents,” said Mike Dark, a staff attorney with California Advocates for Nursing Home Reform.

Because families have been barred since March from entering the facilities in order to mitigate spread of the virus, they are not able to see what’s going on inside, removing a layer of oversight for what experts say is an industry plagued by staffing shortages, protection for workers and proper training. At the same time, state inspectors are not currently doing onsite regulatory inspections of the homes.

“Without legal liability for reckless and dangerous operators, nursing home residents would truly be abandoned to the virus,” Dark said. “The virus may be an act of God, but these failures are an act of man.”

Already, Alameda County District Attorney Nancy O’Malley confirmed she has opened an investigation into Gateway Care and Rehabilitation Center in Hayward, where state records show 102 people — staff and residents — have tested positive for the virus, and at least 13 people have died. The owners of that facility have a lengthy record of health and safety violations among their Northern California nursing facilities, an analysis by this news organization found.

California state law already protects doctors, hospitals, pharmacists, nurses and dentists who render services during emergencies to be protected from liability for injuries sustained by their patients because of their care — short of a “willful act or omission,” but healthcare lobbyists in their letter to the Governor noted that the law doesn’t cover skilled nursing, assisted living facilities, health plans, many types of health care workers.

“When providers approach their work in the coming weeks and months, we must give them the support they need to make the best possible decisions, including protections from future legal action, as long as that liability protection does not excuse willful misconduct,” their letter states.