There’s an old adage that bad facts make bad law. It makes sense. Crafting a law to deal with an extreme case may fit the particular case but can endanger constitutional and vested rights if applied to more common circumstances.
We have this going on right now in the COVID-19 pandemic. The Wall Street Journal reports “the number of U.S. coronavirus-linked deaths in long-term care facilities including nursing homes has eclipsed 10,000.” More than 30% of Los Angeles County COVID-19 deaths were residents of long-term care facilities. And, the California Department of Public Health released information that more than 3,000 cases were reported among patients and staff members in 258 facilities.
So, it’s pretty clear that we have a set of bad facts – really bad facts. And, efforts to make bad laws for bad facts are evolving. The California Medical Association, the California Hospital Association, the California Association of Health Facilities, the California Association of Health Plans, the California Assisted Living Association and Leading Age California have asked Governor Newsome to make an order that these facilities and doctors be immune from any administrative sanction or criminal or civil liability resulting from their acts treating COVID-19 patients
So, let’s go back to the bad facts. America has millions of people who reside or work in long-term care facilities, including 1.3 million in nursing homes, 800,000 in assisted living facilities and 3 million people who work in skilled nursing or residential care facilities.
These people have families. They might be old, but they still have dignity and are assured the protections of our laws – of equal justice.
There is little controversy that people and staff in long-term facilities face high risk during the coronavirus pandemic. We see grim proof in daily COVID-19 death reports. The CDC has issued particular guidance to long-term care facilities to keep COVID-19 from entering the facility, identifying infections early, preventing its spread, utilizing personal protective equipment and identifying and managing illness. Similar guidance has been updated to Nursing Homes.
Now let’s get back to what California nursing homes and long-term care facilities want from Governor Newsome. They want blanket immunity from civil liability for any injury or death or loss allegedly resulting from their acts treating COVID-19 patients. Under their plan, they’ll permit an exception for willful misconduct.
But, they want to increase the judicial standard of proof for willful misconduct claims from the preponderance of the evidence – more likely than not standard – to the more onerous one of clear and convincing proof. In other words, for the most part, the constellation of failed or misapplied efforts to protect residents of these facilities would be given a pass.
These failures might include the admission of COVID-19 carriers to the facility, the failure to identify infections early, and further failures in identifying and managing the illness. All of this would be excused. This blanket immunity smothers the rights of seniors and their families.
Who does this benefit? Well, 80% of California nursing homes are owned by for-profit, corporate chains. And, who is speaking up against this?
Newspaper editorials; senior advocates; California advocates for nursing home reform; and families of residents. So, why speak out?
I’ve got a few reasons. I wrote The Wolf at the Door: Undue Influence and Elder Financial Abuse. I’ve seen how seniors and their families have been ignored. Also, I represented thousands of plaintiffs who had been injured or had family members died because of dangerous and often FDA withdrawn drugs.
Too often I’ve seen wealthy, powerful companies try to smother the rights of injured people.
It would be a shame if our government participated in this smothering.
At Hackard Law we represent clients in significant California cases where we think we can make a substantial difference. If you would like to talk to us about your case, then call us at Hackard Law – 916 313-3030. If you have Covid-19 related issues, email us at hackard@hackardlaw.com.
