Repeal blanket immunity
We all make mistakes. It’s the human condition.
Yes, even Gov. Andrew Cuomo, although he seems constitutionally incapable of admitting it when he does, as in the state’s less-than-stellar oversight of high nursing home death tolls from COVID-19. Instead, he doubles down and triples down on his disclaimers of responsibility, convincing nobody and instead drawing ridicule. We’re New York smart, remember?
This nature of his threatens to stain if not significantly overshadow his legacy as a superb leader for New York during the first round of the pandemic, and he’s bringing it all on himself. It never had to come to this.
The infamous March 25 Department of Health order, which was no doubt vetted by if not originated from the governor’s office, directed nursing homes, already under extreme duress, to accept COVID-19 infected patients released from hospitals, if medically stable. That was a mistake that greatly increased the vulnerability of stressed nursing homes and their staff and residents and was later rescinded.
But the real doozy of a mistake made by the governor, and which is still in play, was in early April giving blanket immunity from prosecution or lawsuits to nursing homes and hospitals, any and all responders and staff at these facilities, but also the facilities themselves, their administrators, owners and even board members.
Ten days earlier the governor had appropriately given such immunity, an extension of the state’s Good Samaritan law, to just those caregivers and staff who were the front line troops. But by the time that was translated into a law, apparently the nursing home and hospital lobby persuaded the governor to greatly expand the immunity blanket to one of the most expansive of any state. At the same time, record-keeping at nursing home facilities was relaxed by the state, which oddly enough just happens to make any lawsuit even harder to prove.
The net effect has been to make bringing a lawsuit against a nursing home extremely difficult. This means the governor, and no one else, chose to protect the corporate interests of nursing homes at the expense of family members seeking legal remedies for lost loved ones at these facilities. That is a horrendous mistake and needs correcting soon, for the deserving families who feel they have a case from the last four months, but also to bring back transparency and accountability to the nursing home industry, which does not have a spotless reputation to begin with, and to put them on notice that business as usual does not cut it. On its face, the nursing home death toll tells us that, and we can’t even be remotely sure what that toll actually is since initially nursing homes self
reported their COVID dead, and the state has not included those who originated from nursing homes but were transferred and later died at hospitals.
The Legislature is convening a rare July session, and the featured attraction will be joint hearings on nursing homes and the grim pandemic toll. Understandably, the governor is not a big fan of these hearings since they threaten his orchestrated efforts, such as the recent Department of Health whitewash, to further avoid responsibility. The entire point of that so-called report was to try to control the narrative, a page from the governor’s usual playbook. As for the hearings, I wouldn’t be surprised that he heckles from the sidelines, and one way or another tries to derail them. Here’s hoping the Legislature has the political will to dig deep enough so that something meaningful in terms of change can materialize.
If there is one piece of legislation that screams to be passed, it is Flushing Assemblyman
Ron Kim’s repeal of the blanket immunity law referenced above. Not only is repeal the right thing to do, there is another conspicuous advantage.
Advocates for change in nursing homes point out that there have been traditionally three checks on misbehavior. The first is the steady repeat flow of visitors, usually to see loved ones, who keep an eagle eye on day-to-day care. The second is state regulators, and the third the occasional lawsuit, which gets everyone’s attention. As it happened over the past four months, visitors were banned from nursing homes, with justification; regulators were less present if at all, and the governor pulled the rug out from under legal recourse.
While a number of other investigations of New York’s nursing home debacle during COVID-19, chapter 1, may materialize, such as by the state’s attorney general, the one I trust the most and which is least susceptible to manipulation by politicians is a good old fashioned lawsuit, with discovery, depositions under oath, and all the pre-trial hoopla that in proper legal hands is an impressive truth gatherer.
Kim, who lost an uncle to COVID-19 in a nursing home, said repeal “allows families to pursue a process in which they can be heard and seek corrective actions so their love ones didn’t die in vain.”
A fitting if rather modest memorial to New York’s most vulnerable. The least we can do.