Providing legal immunity for health care providers could be dangerous

Under cover of the COVID-19 pandemic, Gov. Gavin Newsom is poised to sign off on a request to slash health care provider accountability for negligent, reckless and abusive conduct toward patients, which could harm elders, people with disabilities and people in marginalized communities. The governor needs to change his mind.

On April 9, California’s most powerful health care lobbying organizations wrote to the governor seeking an executive order granting broad immunity to all health plans, health care providers and assisted living providers. The lobbyists’ request cited COVID-19 and the tough decisions “to allocate scarce medical resources among too many patients who need them” as justification for a proposed free pass on misconduct that could harm or kill patients.

Due to the prompt action of Newsom in issuing a statewide shelter-in-place order, these kinds of battlefield decisions about rationing health care have proved unnecessary. While the virus has overwhelmed some nursing homes and disproportionately harmed people with low incomes and communities of color, it has not depleted our health care resources or triggered rationing.

Granting broad immunity to the health care industry would endanger, not protect, all Californians. The industry has already received certain immunities from liability under California’s state of emergency declaration, as well as waivers of many important patient protection requirements. 

This sweeping additional immunity sought by the industry would remove the last legal impediment to potentially reckless decisions and misguided actions that harm patients, whether related to COVID-19 or not. Furthermore, it could discourage sick people from seeking help from health care providers, which may feel free to no longer follow the rules.

California’s legal system is already structured to consider all circumstances of a health care provider’s actions or inactions. Our laws and juries apply context to all cases with the goal of ensuring that people act reasonably and are judged fairly. Mistakes are allowed.

The proposed executive order could trigger reckless decisions that do not account for potential harm. No individual or organization should have unfettered power when it comes to peoples’ lives.

Over the last several decades, the California Legislature has created laws that protect health care consumers from abuse, neglect and abandonment. These laws underscore California’s commitment to the dignity and well-being of all residents. In this difficult time, the governor should be reiterating that commitment instead of discounting it.

With COVID-19 ravaging our most vulnerable communities, patients are frightened. They have never been more isolated and more exposed to possible abuse and neglect. Patients’ friends, families, advocates and regulators are no longer observing or overseeing their care as they once did. They deserve assurances that our rules about their care are still important and will be enforced if necessary.

As those who speak for patients, many of whom are unable to speak for themselves, we are certain that granting additional immunity to health care providers will not save lives. Rather, it will encourage dangerous, self-interested treatment of sick people by granting a virtual get out of jail free card.

We hope that reason and justice are not among the casualties of COVID-19, and that our time-honored system of laws and accountability prevails with the governor.

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 Tony Chicotel is a staff attorney at California Advocates for Nursing Home Reform, a nonprofit organization, tony@canhr.org. He wrote this commentary for CalMatters.