Covid litigation and immunization
(Dan here…a note for reality)
Full liability release for businesses and hospitals
It’s necessary, Mitch McConnell and his colleagues say, because of a “flood” of frivolous lawsuits crushing businesses and threatening economic recovery. So it’s important to say this clearly and out loud: there is no crisis of COVID-19 litigation. It’s made-up, it doesn’t exist, it’s a ploy to get businesses out of paying for compliance. That’s entirely it.
We have all the evidence we need on this. Hunton Andrews Kurth, a law firm, has been dutifully tracking COVID-19 complaints at its website for all to see. As of today, it shows 3,521 “complaints,” but the majority of those involve petitions for prisoner release and fights over insurance claims, as well as consumer and contract disputes. Under “labor and employment” there are a grand total of 302 cases, total, across the entire country.
There are 616 “civil rights” claims, and while most of those are challenges to stay-at-home orders, a couple of those might be business-related. At least one high-profile workplace case, against Tyson and JBS meatpacking plants, is being contested under the Civil Rights Act. The claim is that the largely Black and Latino workforces were not protected due to racial discrimination, compared to the mostly white managers. But that’s a very particular situation.
If you’re talking about the kind of cases that McConnell claims are “flooding” courts—“conditions of employment” cases alleging wrongful death, exposure to COVID-19, or a lack of personal protective equipment—there are 67 such cases. There are 33 wrongful death cases in the “Health/Medical” section but almost all of them have been filed against nursing homes. There are 6 malpractice cases, only one a COVID-19 misdiagnosis that resulted in death (three others are about nursing homes). There’s exactly one (1) miscellaneous wrongful death tort case outside the labor and health sections.
Really appreciate that Covid tracker Dan, and the note from reality. It confirms what I had suspected about Covid litigation, a tort can only be successful if there is a breach of duty that is the actual and proximate cause of the harm. The focus, here, should be on the breach of duty part, if a business is following regulations and industry standards than (even if they can somehow prove that they got the virus from that specific business and not anywhere else) then there is no recovery to be had.
I feel this creates positive pressure for businesses to not cut corners in their sanitation/ cleanliness efforts rather than open disregard for public health recommendations (see NYT’s piece on Janitors during this time). PI and MedMal firms hardly have any reliable/cheap ways to investigate these cases so where would they be coming from?
The Hill noted that lobbyists have had more access to McConnell than House Democrats so this may be more about mediating all of the commercial litigation regarding force majeure clauses and the like by ensuring there are no consumer/patient suits they have to worry about. This ultimately is myopic, as the longer the public health measures are flouted, the more uncertain businesses economic outlook become, regardless of litigation.
Interesting note -> school’s are not liable for parents getting injured if their children are the vector as far as I know. Moreover, the obvious solution here, if you want kids back in school, is to create a fund for treating and containing outbreaks. Those questions for the DoE posted yesterday were exactly the questions we need to be asking instead of the limitations on liability suits, it’s not as if defendants are flush with cash now.
Rather than provide personal protection, operating procedures and line protective measures for safe working conditions, adequate wash facilities, transparency in re testing, etc., … we will make it so that they can’t seek reparations. What is government for, anyway?
Senator McConnell, what day was it that Charles Koch called you in re this matter?
Correcting the reference to the post:
https://prospect.org/coronavirus/unsanitized-no-flood-of-covid-lawsuits-against-businesses-liability/
July 16, 2020
Unsanitized: There Is No Flood of COVID Lawsuits Against Businesses
By DAVID DAYEN
As for the matter of protecting businesses against legal suits for negligence over coronavirus harm, Democratic governors and legislatures were active from the beginning. This is surely not a Republican only matter…
https://www.nytimes.com/2020/05/13/nyregion/nursing-homes-coronavirus-new-york.html
May 13, 2020
Buried in N.Y. Budget: Legal Shield for Nursing Homes Rife With Virus In New York, 5,300 nursing home residents have died of Covid-19. The nursing home lobby pressed for a provision that makes it hard for their families to sue.
By Amy Julia Harris, Kim Barker and Jesse McKinley
https://www.nytimes.com/2020/07/08/nyregion/nursing-homes-deaths-coronavirus.html
July 8, 2020
Does Cuomo Share Blame for 6,200 Virus Deaths in N.Y. Nursing Homes?
A state directive sent thousands of Covid-19 patients into nursing homes, but the Cuomo administration has given other reasons for the virus’s spread.By Luis Ferré-Sadurní and Amy Julia Harris
https://www.nytimes.com/2020/05/13/nyregion/nursing-homes-coronavirus-new-york.html
May 13, 2020
New York is one of at least 15 states that have granted some form of legal protection to nursing homes and other health care facilities since the beginning of the pandemic….
New Jersey, Massachusetts, North Carolina, Utah and Wisconsin have also passed new measures to shield health care facilities, including nursing homes, from liability.
Governors in at least nine other states — Arizona, Connecticut, Hawaii, Illinois, Kansas, Michigan, Mississippi, Rhode Island and Vermont — issued executive orders shielding health care facilities from most lawsuits related to their response to the pandemic….
Clarifying these references:
https://www.nytimes.com/2020/05/13/nyregion/nursing-homes-coronavirus-new-york.html
May 13, 2020
Buried in N.Y. Budget: Legal Shield for Nursing Homes Rife With Virus
In New York, 5,300 nursing home residents have died of Covid-19. The nursing home lobby pressed for a provision that makes it hard for their families to sue.
By Amy Julia Harris, Kim Barker and Jesse McKinley
https://www.nytimes.com/2020/07/08/nyregion/nursing-homes-deaths-coronavirus.html
July 8, 2020
Does Cuomo Share Blame for 6,200 Virus Deaths in N.Y. Nursing Homes?
A state directive sent thousands of Covid-19 patients into nursing homes, but the Cuomo administration has given other reasons for the virus’s spread.
By Luis Ferré-Sadurní and Amy Julia Harris
Anne:
Thanks for the Dayden article, I really enjoyed it. But I do not think you are right about ” the matter of protecting businesses against legal suits for negligence over coronavirus harm, Democratic governors and legislatures were active from the beginning. This is surely not a Republican only matter…” if we bifurcate health care businesses from the businesses part of reopening. Nursing homes have very powerful lobbies and the “need” to shield them and other health care facilities were necessitated as part of the decision of pitting states against each other for buying ventilators and treatments as well as spending/stockpiling on PPE -> those decisions were not about the economy but about the scarce resource pool created when the federal gov’t refused to use monopsony power.
What the Republican policies do is try to shield businesses that do not take the proper sanitation steps so that they can open quicker and more haphazardly,perhaps buoying the economy for a short while:
“It’s pretty clear they want financial incentives for schools to reopen in the fall. We know the White House wants insane things like a capital gains tax cut. But aside from Trump obsessions, the big ask bringing Republicans to the table is a full liability release for businesses and hospitals whose workers or customers or patients contract COVID-19. Combined with the lack of an emergency workplace standard from OSHA, this would be a license to turn storefronts and factories and offices into death traps, with no attention paid to the measures necessary to keep people safe.” (from Dayden)
https://www.nytimes.com/2020/05/13/nyregion/nursing-homes-coronavirus-new-york.html
May 13, 2020
Buried in N.Y. Budget: Legal Shield for Nursing Homes Rife With Virus
In New York, 5,300 nursing home residents have died of Covid-19. The nursing home lobby pressed for a provision that makes it hard for their families to sue.
By Amy Julia Harris, Kim Barker and Jesse McKinley
In the chaotic days of late March, as it became clear that New York was facing a catastrophic outbreak of the coronavirus, aides to Gov. Andrew M. Cuomo quietly inserted a provision on Page 347 of New York’s final, voluminous budget bill.
Many lawmakers were unaware of the language when they approved the budget a few days later. But it provided unusual legal protections for an influential industry that has been devastated by the crisis: nursing home operators.
The measure, lobbied for by industry representatives, shielded nursing homes from many lawsuits over their failure to protect residents from death or sickness caused by the coronavirus.
Now, weeks later, more than 5,300 residents of nursing homes in New York are believed to have died from the outbreak, and their relatives are finding that because of the provision, they may not be able to pursue legal action against the homes’ operators over allegations of neglect.
Several state lawmakers, besieged by complaints that poor staffing and shoddy conditions allowed the virus to spread out of control in the homes, said they were blindsided by the provision. At least one called for it to be repealed.
Mr. Cuomo’s aides said nursing homes were not singled out for protection, noting that the provision also shields hospitals and other health care facilities. As New York anticipated a surge of patients, officials wanted other facilities, including nursing homes, to take in Covid-19 patients and expand bed capacity, they said. Their goal was to protect health care workers from litigation during an emergency.
“This legislation is not intended to shield any bad-acting facilities during this tragic time, but rather to ensure facilities could continue to function in the face of potential shortages and other evolving challenges the pandemic presented,” said Dani Lever, a spokeswoman for Mr. Cuomo.
As the coronavirus has ravaged nursing homes, killing more than 29,100 residents and staff members as of Wednesday, lobbyists across the country have pushed for immunity from lawsuits over how the homes have responded to the crisis.
New York is one of at least 15 states that have granted some form of legal protection to nursing homes and other health care facilities since the beginning of the pandemic….
Advocates for nursing home residents said there were three longstanding safeguards against bad homes: family members who frequently visit; regular inspections by government regulators; and, as a last resort, lawsuits that can hold negligent homes accountable. But families can no longer visit. Regulators have largely stopped inspecting.
“All of the systems there to protect people are gone,” said Toby Edelman, a senior policy attorney at the Center for Medicare Advocacy. “To me, the combination — rules are waived, protections are waived, nobody is going in to check. And now immunity? That is a lethal combination.”
New Jersey, Massachusetts, North Carolina, Utah and Wisconsin have also passed new measures to shield health care facilities, including nursing homes, from liability.
Governors in at least nine other states — Arizona, Connecticut, Hawaii, Illinois, Kansas, Michigan, Mississippi, Rhode Island and Vermont — issued executive orders shielding health care facilities from most lawsuits related to their response to the pandemic.
Nursing homes are pressing for legal protections in other states, including Florida, Pennsylvania and California….
https://www.nytimes.com/2020/07/08/nyregion/nursing-homes-deaths-coronavirus.html
July 8, 2020
Does Cuomo Share Blame for 6,200 Virus Deaths in N.Y. Nursing Homes?
A state directive sent thousands of Covid-19 patients into nursing homes, but the Cuomo administration has given other reasons for the virus’s spread.
By Luis Ferré-Sadurní and Amy Julia Harris
The death toll inside New York’s nursing homes is perhaps one of the most tragic facets of the coronavirus pandemic: More than 6,400 residents have died in the state’s nursing homes and long-term care facilities, representing more than one-tenth of the reported deaths in such facilities across the country….
[ I am uninterested in the politics of the matter.
The point is that we understood from the beginning that of the groups especially vulnerable to the spread of the coronavirus, older men and women were in need of careful protection. That nursing home residents were not protected and worse while nursing home controllers were legally protected from what should have been an obligation is at least subject to study as an institutional failure of the healthcare system.
The same failure occurred in the United Kingdom. ]
https://www.nytimes.com/2020/05/25/world/europe/coronavirus-uk-nursing-homes.html
May 25, 2020
On a Scottish Isle, Nursing Home Deaths Expose a Covid-19 Scandal
At the Home Farm nursing home on the Isle of Skye, more than a quarter of its residents died and nearly all were infected with coronavirus. Families are furious.
By Benjamin Mueller
Anne,
Sorry didn’t mean to make it overly political, and I think I was just skeptical of what litigation would do with respect to nursing homes- perhaps the most abusive users of arbitration agreements, the laws of which preempt state law. Moreover, the immunity can be repealed without issue for litigants (taking care to consider statutes of limitation) and aided by state investigations. Rather, I believe it was Cuomo’s directive moving the patients to the nursing homes that was the culprit, not the immunity issue.
I still do think the two issues are separate, and while I agree with you on both, I am more sympathetic to the second rational, and think the former needs more scrutiny (which I thought was the focus of the original post):
– Immunity for business largely: we need to increase economic output by shielding businesses from immunity writ large although the costs will fall on the essential workers, low income communities, and the sick and elderly.
– Immunity for health care facilities including nursing homes: we need to increase the medical care output by shielding these businesses from liabiliy although the costs will disproportionately fall on the sick and elderly low income communities.
Additionally, here is a list from May of the laws/directives of the various states regarding immunity from suit: https://www.bakerdonelson.com/webfiles/Publications/State-Actions-for-Limiting-Health-Care-Provider-Liabilityv5.pdf
“While the scope of immunities granted by state governments varies across the board, a common theme among them is that none immunize health care providers or facilities from heightened levels of misconduct, such as gross negligence, recklessness, or willful misconduct. There is no protection that exists in any state that would serve to immunize a health care provider or facility for actions proven to involve these heightened levels of misconduct.”
Idriss:
In most states, the laws are pretty specific and limit damages awarded to complainants for economic and non-economic costs in malpractice suits (which this is). This is kind of a joke too as “no” attorney will take a case on unless he will win. This is a pandemic. malpractice awards by state.
I’m aware, I worked plaintiff side at a medmal firm. What I’m saying is the immunity issue is largely obviated by a new federal rule from last fall (which preempts state law on procedure, not substance) allows nursing homes to utilize arbitration agreements. https://www.elderlawanswers.com/new-rule-once-again-allows-nursing-home-arbitration-agreements-17278 This is bad, and moots the immunity liability concern (but not the redirection of seniors to nursing homes) because:
– Unlike judges, arbitrators are private individuals who may be chosen by the nursing home –not publicly elected or appointed officials.
– In arbitration, residents and families not only have to hire a lawyer, they generally have to pay a part of the arbitrator‟s fee. This is like paying the judge – which consumers don‟t have to do in court.
– Arbitration can be very costly and is usually far more expensive than court. As a result, arbitration may not be possible for many residents and families – leaving them with no legal recourse, and you cannot sue as a class.
– The amount awarded to residents and families through arbitration is likely to be less than it would be in court.
– Consumers typically cannot appeal the arbitrator‟s decision as they can in the court system. Moreover, courts apply a high level of deferral to arbitration judgments absent clear and obvious error.
idriss:
Would it be your opinion, there is no need for McConnell’s need to grant immunity given the limitation on suing and also through arbitration requirements? It appears the politicians have already given away the cookie jar?
Idriss Z,
Excellent. I understand the argument you have been making now and agree with the direction you have chosen.
I appreciate the extending of the ideas. An implicit writing-off of older men and women has bothered me, but your focus is correctly broader.
Excellent, and agreed.
Cheers, apologies for the confusion.
Run sorry I missed your earlier comment,
I was much of the same mind as what Eric posted last night (quoted below) but I don’t think McConnell has operated out of “need” for a very long time… everything he does can be described as excessive. This is the same he has done prior to every election, grab as much power and pass as many deregulations/ corporate goodies which, although not achieving anything, gives them a solid foundation if the election comes in their favor, or hampers all efforts of the Democrats if they are victorious.
But more specifically, I think the immunity is McConnell mediating between by business groups and insurance companies, they’d rather socialize and arbitrate their (currently large) disputes away through legislation at the cost of customers/labor. This would go a long way to giving them peace of mind especially, and this is what I would be concerned about, the length and scope of the immunity, because we still have no clue when this will end. I think he’s making a play on the future, covering bases.
Even more specifically, for nursing homes the solution that’s worked in other areas is increased minimum wage.
https://www.nytimes.com/2020/06/18/business/coronavirus-minimum-wage-increase.html
HOW A RAISE FOR WORKERS COULD BE A WIN FOR EVERYBODY
June 18 by Seema Jaychandran
“Two new studies show that giving pay raises to low-wage workers is good for consumers, too.
That finding could add momentum to efforts to help grocery store clerks, nursing home workers and delivery drivers who are being paid a minimum wage despite their efforts being so essential during the current pandemic.
The new research shows that raising the minimum wage improves workers’ productivity, which translates into businesses offering higher-quality service.
Ms. Ruffini’s most startling finding was that higher minimum wages reduced mortality significantly among nursing home residents. Her research suggests that if every county increased its minimum wage by 10 percent, there could be 15,000 fewer deaths in nursing homes each year, or about a 3 percent reduction.
How did pay increases translate into better patient health and longer lives? It appears that with better pay, jobs in nursing homes became more attractive, so employee turnover decreased. Patients benefited from more continuity in their care.
In addition, the better paid employees may have simply worked harder, perhaps because they cared more about holding onto their jobs. Economists say they have been paid an “efficiency wage”: Employees become more productive when their wages are higher.
The higher wage may also have attracted more skilled or industrious people to the job, but this seems to account for at most a small portion of the improvements in patient health.
A crucial finding is that the benefits for workers and patients did not come with any apparent downside to nursing homeowners. Their profits remained steady because they were able to defray their increased costs by charging higher fees. That’s one reason these results might not apply in all industries. There are few alternatives to using a nursing home, so if the industry raises prices, it will not lose too many customers.
What unlocked these gains was government action: All nursing homes in a community had to pay employees more. That eliminated competitive disparities that might have made individual operators reluctant to raise wages unilaterally.
Supporters of raising the minimum wage usually make their case based on fairness and equity. That rationale is important, but the central finding of these studies — that a higher minimum wage can boost work force productivity and save lives — is a powerful one, too.”
IZ- I genuinely have no idea how this will affect medmal and the state of tort claims right now, because companies need to have money to pay. Wrongful death and other claims are likely going to be subordinate to other claims, OSHA ain’t investigating anything, nor are any other federal agencies doing investigations that provide hints for where the problem areas are. So the focus ought to be on shoring up labor protections and wages (min wage, UI, worker’s comp subsidies, etc.), at least those costs are not variable so Republicans and corporations may be more amenable.
“I would seriously consider giving the Republicans corporate liability protection. Sure, it sucks as a policy, but more because it reflects callous indifference to worker safety than because the status quo will actually benefit many people. There are very few lawsuits so far and little reason to expect this to change. If liability protection is symbolically important to Republicans, Democrats could try to pair it with an increase in life insurance and disability payments under Social Security and free coronavirus medical care for all, or they could agree to allow employers to avoid liability if employers agree to pay for workers’ comp that covers lost wages, medical care, and scheduled payments for death and permanent disability due to Covid. (This tradeoff of negligence liability for workers comp is what greased the wheels for workers’ comp originally.)”