[EXCERPTED BY LM]
By Joel Warner
Governor Andrew Cuomo offered blanket immunity from prosecution for negligent nursing home executives last year. Now those who lost love ones during the pandemic thanks to those executives’ greed have nowhere to turn. Those who put profit over human life — and Cuomo — need to be held responsible.
As the Daily Poster reported last May, the Cuomo administration quietly inserted the liability shield provision into the state’s 2020 budget bill after a powerful health care industry group that donated more than $1 million to Cuomo’s political machine drafted and lobbied for the law.
The provision was ostensibly designed to help nursing homes as they made difficult decisions in the face of an unprecedented emergency. But the law extended the protections not just to medical staff, but also to corporate executives — and critics worried that the law would allow the facilities’ owners and operators to cut corners and risk people’s lives without repercussions.
As lawmakers pushing to revoke the measure noted in a legislative memo that month, the immunity law “egregiously uses severe liability standards as a means to insulate health care facilities and specifically, administrators and executives of such facilities, from any civil or criminal liability for negligence.”
Now, as Cuomo’s handling of nursing homes during the pandemic has exploded into a national scandal amid revelations of suppressed COVID death counts alongside reported threats against Cuomo critics and allegations of sexual harassment, the Daily Poster has found the law is indeed insulating nursing home administrators and executives from civil or criminal liability for their actions.
Over much of the past year, the provision has apparently had a chilling effect across the state, causing many lawyers to refuse all new nursing home–related negligence cases, whether or not they seem to be directly related to COVID-19, and limiting the scope of other legal actions begun before the pandemic. Though New York has seen more than fifteen thousand nursing home deaths, there have only been a handful of wrongful death cases filed in the state, according to data compiled by the law firm Hunton Andrews Kurth, which has been tracking COVID-related cases.Joel Warner, Jacobin
On April 3, 2020, as the media was reporting on how New York was becoming a global coronavirus hot spot, Cuomo signed into law the state’s budget bill for the year, which included a little-noticed provision on page 347 that noted that executives, board members, trustees, and other corporate officials at nursing homes and other health care facilities “shall have immunity from any liability, civil or criminal, for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services” related to COVID-19.
The liability shield, which covered both lawsuits and criminal prosecutions, was made retroactive to March 7, 2020. A Cuomo spokesperson would later insist the measure wasn’t due to industry influence — but lobbyists suggested otherwise.
The day before the measure became law, the Greater New York Hospital Association (GNYHA) — a major lobbying group that represents hospital systems, including some that own nursing homes, that has donated more than $1.25 million to Cuomo’s political operation — sent out a memo stating it had “drafted and aggressively advocated for this legislation.”
As GNYHA noted to its members in the announcement, “You and your heroic workers have enough to agonize over without having to worry about liability for decisions and actions made under extraordinarily challenging circumstances.”
The provision’s effect was immediate.
Holly Mosher, a partner at the Friedlander & Mosher, PC law firm in Ithaca, which focuses on nursing home negligence cases, told the Daily Poster that before then, her firm usually followed up on several reports of alleged nursing home abuse or neglect each week. Now, suddenly, they weren’t looking into any potential new cases at all. That included not just allegations of residents getting sick or dying from COVID-19 because of improper conditions, but also claims of negligence that seemed to have little to do with coronavirus at all, such as preventable injuries and bedsores, other than the fact that the incidents occurred in the middle of the pandemic.To continue reading the article in its entirety, click here.