As Virus Spreads in Nursing Homes, Gov. Cuomo’s Big Donors Are Immune from Liability

Theodore Hamm Apr 23, 2020

Corpses left in the hallway of a nursing home in East New York. A whopping 55 deaths at another facility in Cobble Hill. Dozens of fatalities at comparable locations in the Bronx, Queens, Manhattan, and Staten Island. 

The gruesome events have produced a spate of alarm across the city, which during the pandemic has seen over 2,100 deaths in nursing homes from COVID-19. Across the state, the total number has surpassed 3,500. 

Gov. Cuomo has raked in dozens of five-figure donations  from nursing home executives and their lobbyists.

Garnering much less attention was relevant legislation included in Gov. Andrew Cuomo’s austerity budget that the legislature approved earlier this month. “Tucked inside the budget bill,” as the Wall Street Journal noted, was liability protection for both hospitals and nursing homes during the pandemic.

This means that both entities are operating with immunity from civil lawsuits and most criminal penalties during the crisis. While this protection may make sense for besieged hospitals, why it applies to nursing homes merits attention. 

The Greater New York Hospital Association, which includes nursing homes, took credit for writing the legislation. Amid the governor’s 2018 reelection campaign, that group contributed $1.15 million to the state Democratic Committee’s “housekeeping” account, which Cuomo controls. 

During his three runs for governor, Cuomo also raked in dozens of five-figure donations directly from nursing home executives and their lobbyists. Many of the worst-rated facilities in the state have maintained a quite friendly relationship with Cuomo. 

Cuomo originally issued an executive order bestowing immunity on hospitals, nursing homes and other healthcare facilities on March 23. The legislation passed with the budget extends that protection through the duration of the crisis — and covers retroactively to March 7, the day Cuomo declared a state of emergency. 

Many proponents of the liability protection view it as a dramatic, but necessary step given the scope of the current crisis. “In normal circumstances, it would be unthinkable to confer immunity in this fashion,” New York State Bar Association president Henry Greenberg told the Albany Times-Union

Most expressions of support for the measure highlight a legitimate need to protect frontline healthcare providers from malpractice lawsuits. The problem is that administrators at hospitals and nursing homes can now make life-or-death decisions without fear of repercussions. 

Brooklyn attorney John O’Hara, who won a high-profile wrongful death suit in 2015 against a now-shuttered Prospect Park nursing home, says that legal action helps create accountability. “We need to know about staffing issues, hiring practices and safety procedures during the crisis,” says O’Hara. “Lawsuits are one of the best methods of finding out what really happened — and preventing future disasters.”  

As Newsday reported, families who have lost loved ones at Long Island nursing homes are indeed sounding the alarm regarding staffing and safety issues. “Where were the extra supplies? The extra staff?” asked one grieving woman. “They left [dying people] there like they didn’t matter.”

At a press conference on Wednesday, Cuomo responded to questions about the state’s directive that nursing homes must re-accept residents diagnosed with the COVID-19, but who are sent back from the hospital. 

Cuomo stressed that the nursing homes are privately owned and that the state’s role is to regulate them (via the Department of Health). If facilities commit serious violations, he said, “they can lose their license.” 

Given that the Department of Health answers to the governor, that seems like a minimal risk for the nursing home operators. Amid the crisis, they will thus proceed with immunity. 

Ted Hamm’s Bernie’s Brooklyn: How Growing Up in the New Deal City Shaped Bernie Sanders’ Politics is available for pre-order. 

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