WINSTED — Earlier this week, a group of attorneys and activists sent a letter to President Donald Trump and members of the Senate and House of Representatives, urging them to reconsider a legal step used in crisis situations — blanket immunity. The letter was initiated by consumer activist Ralph Nader and his Winsted tort museum Executive Director Richard Newman.
The letter argues that using blanket immunity to avoid legal action is completely detrimental, in the face of the coronavirus pandemic, because laws already exist that protect people and businesses.
“In this time of crisis, of a global pandemic that has taken the lives of so many of our fellow citizens, we face a host of challenges. Our heroic healthcare workers are fighting valiantly to stem the tide of infection. Essential workers around the country are putting their lives at risk to keep necessary services running,” the letter reads. “At this critical time, when we should all be pulling together, we must beware of an attack on our citizenry from another quarter: The pernicious effort by corporate lobbyists, insurance companies and other special interest groups to put our fellow citizens at risk, and press for legislative immunity to escape liability for preventable harms causing injury or death.
“Even though leading bioethicists and legal scholars recognize that the risk of lawsuits against health care institutions and vendors is low, there has still been a widespread effort to immunize harmful conduct by institutions and personnel from liability for casualties caused in ‘good faith.’ This is bad law, and bad precedent, with risks far beyond the current pandemic,” the letter continues.
The letter is also signed by lawyers and educators from Washington, D.C., Portland, Ore., San Diego and Los Angeles, Calif., Minneapolis, Minnesota, and Salt Lake City, Utah, as well as Bridgeport and Winsted here.
For Newman, the letter promotes concerns he has had for years.
“It’s something I’ve thought a lot about in my career as an attorney,” he said. “We have a structure in our legal system already, to deal with who has done wrong, and who has adapted to circumstances in extreme situations. The law works.
“In a pandemic, where doctors and other health care providers are thrust into circumstances like the ones we have now, they can adapt. So can juries and laws. They can be flexible and adjust. But this rush to keep nurses, doctos and nursing home workers immune from the law, as we also rush to reopen the state, is saying, ‘You can’t sue us if you get sick.’ Blanket immunity removes accountabily,” he said
Making sure a health care provider is accountable is the basis of the letter, Newman said. Removing that accountability with blanket immunity “removes the incentive.”
“There’s no reason to be careful, at a time when you should be more careful than ever,” he said. “It seems to me that you should not sacrifice lives in panic, or in a paroxysm of fear. (Hospitals and care providers can) move prudently to do what’s best, what makes the most sense.”
The blanket immunity issue isn’t only about health care, Newman said.
“In Georgia, they’ve ordered businesses to reopen, and hairdressers are making customers sign a waiver, saying, ‘You have to sign this, it says if you get sick, you can’t sue us.’”
NBC News reported April 27 that the nursing home industry was seeking this kind of immunity. Nursing homes have faced the spread of the coronavirus throughout their facilities. In Connecticut, Gov. Ned Lamont developed an executive order mandating that selected nursing homes be used exclusively for COVID-19 cases, while residents of those homes have been moved elsewhere or discharged into the care of their families.
The Sharon Health Care Center is one of the facilities chosen for this order. When the plan was first announced, the first selectman and members of the Sharon community objected, saying the town had few cases, and that moving elderly residents away from their home would cause undue stress and confusion.
NBC reported that at least six states have provided explicit immunity from coronavirus lawsuits for nursing homes, and six more have granted some form of immunity to health care providers, which legal experts say could likely be interpreted to include nursing homes. Patient advocates worry that nursing homes accused of extreme neglect could avoid liability, according to the report.
A story by Reuters reported April 17 that “corporate America” was seeking legal protection “for when cornavirus lockdowns lift.”
Reuters reported that “the U.S. Chamber of Commerce, National Association of Manufacturers (NAM) and National Federation of Independent Business (NFIB) are seeking temporary, legal and regulatory safe harbor legislation to curb liabilities for employers who follow official health and safety guidelines. The Business Roundtable, which represents corporate chief executives, is also exploring ways to limit coronavirus liabilities.”
A portion of the letter also illustrates the signers’ belief that allowing immunity is dangerous.
“To the extent ... that medical/legal/ethical committees draw up new standards, new guidelines for appropriate medical decision-making, even when it comes to rationing or allocating ventilators, physicians who follow those guidelines would be within the standard of care, and not liable for malpractice. The definition of negligence is ‘unreasonable conduct under the circumstances.’ The current circumstances are a pandemic and therefore a judge or jury would make significant allowances for health care providers ... adopting language that provides any sort of blanket immunity, or even ‘good faith’ immunity is overbroad. It will deprive legal recourse to victims who die, not as a result of COVID-19, but as a result of medical errors and negligence.”
The point, Newman said, is that when a crisis arises, leaders and lawmakers have a tendency to overreact. Newman hopes the letter will encourage a dialogue with congressional leaders.
“In a time of uncertainty, let’s not throw our our laws. Don’t throw the baby out with the bathwater,” Newman said. “Don’t remove accountability, or something that removes protection of the public. I thought the open letter would be a good idea.”
Newman thinks lawsuits will come as a result of the pandemic. “If people discover there was reckless or aggregious behavior at a hospital for example, it could happen,” he said. “But ... if there’s a sense that in an emergency, (the hospital) did its best and provided the highest level of care possible, people will realize that. But if there’s evidence that someone was ignored for five days, and that they were neglected and there was recklessness, they could be sued, and they ought to be sued.
“It will be sorted out, one case at a time; the law is designed to do that,” Newman said.
The tort museum is closed because of the pandemic, but online programs are being scheduled, and anyone can tour the museum at www.tortmuseum.org.