Analysis

Injury Attys Seething Over COVID-19 Medical Immunity Push

By Y. Peter Kang
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Law360 (April 28, 2020, 8:16 PM EDT) -- Plaintiffs injury attorneys are blasting lobbyists for the health care and insurance industries who they say are taking advantage of the COVID-19 pandemic to push for civil and criminal immunity for hospital chains and nursing home companies, to the detriment of patients injured by medical negligence.

A number of hard-hit states such as New York, New Jersey and Massachusetts have already enacted legislation conferring health care provider immunity, but Florida and California — both among the top 10 states in terms of total deaths — have not.

Health care and insurance lobbyists are clamoring for Florida Gov. Ron DeSantis and California Gov. Gavin Newsom to issue executive orders shielding health care providers from civil and criminal liability in order to help physicians and nurses treat patients without the fear of getting sued.

Plaintiffs attorneys said that while medical professionals on the front lines are rightly being exalted for their work, the for-profit nursing home operators and health care systems are using that goodwill to further their tort reform agenda and protect their bottom line.

"The insurance lobby is always seeking any and every opportunity to continue to collect premiums while paying out as little as they possibly can," said Daniel Harwin, a medical malpractice plaintiffs attorney at Freedland Harwin Valori PL in Fort Lauderdale.

Harwin said granting "blanket immunity" for health care providers would set a "terrible precedent which would prevent hospitals and personnel from putting the appropriate protocols in place."

The Florida Health Care Association, a group representing a majority of the state's nearly 700 nursing homes, sent a letter to the governor earlier this month requesting both civil and criminal immunity for any health care treatment affected by the pandemic in the absence of gross negligence or recklessness.

California health care industry groups such as the California Hospital Association and California Assisted Living Association sent a letter April 9 to Newsom asking him to issue an executive order granting civil and criminal immunity to all health care providers, including nursing homes, for all treatment rendered during the COVID-19 state of emergency aside from willful misconduct.

Representatives for the Florida and California governors did not immediately respond to requests for comment.

Industry groups aren't just targeting these two states, attorneys said. The insurance lobby is sending letters to governors in every state asking them to issue executive orders granting immunity, according to personal injury plaintiffs attorney Nicholas C. Rowley of Carpenter Zuckerman & Rowley in Los Angeles. But here's the rub, Rowley said: The orders would confer immunity not just for coronavirus treatment but for any medical treatment.

"Which means if they remove the wrong limb or operate on the wrong side of the body, they can't get sued. What they are trying to do is rotten," he said. "They are using the coronavirus to slip something in to deprive patients of their civil right to have a jury hear their case when a health care provider or medical institution is negligent, no matter what the negligence is."

However, defense attorneys such as Andrew S. Bolin of Bolin Law Group, who represents the Florida Justice Reform Institute, challenged that notion, saying they are only asking for temporary measures to get health care professionals on the front lines to fight the pandemic.

"It's unfortunate to suggest a political or agenda motive behind passing protections for front-line providers who are risking their lives to treat patients in an environment that we haven't seen in this country since 1918," he said, referring to the Spanish flu pandemic. "This is about providing protection for front-line providers who don't need the threat of litigation hanging over their heads when they are making decisions about how to best treat patients during a pandemic."

Bolin noted that coronavirus-related immunity orders and legislation would allow cases involving gross negligence to move forward, which "shows that these laws are not meant to protect every practitioner in every scenario."

But Steve Watrel of Coker Law, a Jacksonville attorney who specializes in suing nursing homes, said proving gross negligence is difficult because it has an extremely high standard.

"It's close to proving manslaughter, for example, and it is not easy to prove," he said. "They know that, and that's why they put it in there. The reality is that that's a high burden."

Delphine O'Rourke, a Duane Morris LLP partner who defends health care organizations, said that given the uncertainty of the novel coronavirus and its long-term effects, lobbyists would be remiss not to pursue immunity protections for health care providers.

"The long-term impacts aren't known. No one had any idea 9/11 first responders would suffer the diseases and mental health challenges they suffered," she said. "If you're in the risk mitigation business, this is a true unknown and you don't know if it peaks at 300,000 deaths in the U.S. So it is their business to say we have no idea what it's going to look like ... if they didn't [push for immunity] it would be surprising."

However, Leslie M. Kroeger, a Cohen Milstein Sellers & Toll PLLC partner and president of the Florida Justice Association, said the insurance lobby's immunity efforts are a "dog whistle" issue that is being driven by the goal of saving money for insurance companies.

"I get it, that's their job," she said. "It doesn't mean that it's right for the people."

Kroeger added that getting protections for doctors, nurses and other health care workers on the front lines is an admirable goal but ignores the fact that the Florida insurance lobby has been pushing tort reform for decades.

"Those men and women are heroes, but the people above them who administer and run these hospitals and nursing homes have been at this for a while, and they are asking for immunity for these companies, not individuals," she said.

While the plaintiffs attorneys who spoke to Law360 largely agreed that they would likely not pursue coronavirus-related litigation against front-line medical workers, they said nursing homes may be fair game given institutional failures at many "bad actor" facilities over the years, particularly the understaffing of homes. Kroeger said lobbyists have long tried to get Florida lawmakers to relax nursing home staffing requirements.

"If companies find themselves with short staff and lack of resources, they have put themselves in that position," she said. "They've [understaffed] consistently for the last 20 years, so for them to now cry 'we need help' is just unfathomable to me. It's as though they think people who've been paying attention have a short memory, but we don't."

Coker Law's Watrel noted that the nursing home industry in Florida is asking for not only civil immunity but also criminal immunity.

"So if they decide not to feed residents, they would be protected," he said, characterizing Florida's gross negligence bar as so high a nursing home can "essentially get away with murder."

Watrel said Florida nursing homes, many of which are already understaffed, are seeing further staffing shortages as some low-paid certified nursing assistants are not showing up for work, which affects nursing home residents' basic care needs.

"People need to be turned, fed and hydrated, assisted to the bathroom," he said. "How would you like to go 30 days without having your teeth brushed or having a shower? To say it's a coronavirus emergency is just a poor excuse. The trade organizations are being opportunistic and taking advantage of the fear and uncertainty to try and better themselves."

--Editing by Brian Baresch and Emily Kokoll.

For a reprint of this article, please contact reprints@law360.com.

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