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Nursing homes and hospitals have asked Oregon Gov. Kate Brown to use her executive orders to protect them from potential lawsuits resulting from COVID-19 deaths.
In a letter dated April 3, obtained exclusively by WW, the health care groups and businesses argue the governor has the power without legislative action to shield them from legal liability.
“This crisis, involving a pandemic, limited supplies and equipment, and rapidly evolving state and federal guidance, regulations, and law is forcing change in how care is being delivered,” the letter states. “The health care system in Oregon needs assurance that such drastic change in how care is delivered, in order to curb the spread of COVID-19, will not cause further systemic damage nor put health care providers at risk while they are responding to this crisis.”
Among the groups and businesses that signed the letter were the Oregon Medical Association, Oregon Association of Health and Hospital Systems, and Oregon Health Care Association, which represents nursing homes, along with hospital systems that include Providence, Oregon Health & Science University, Kaiser Permanente and Legacy.
The groups cite the example of New York state, where Gov. Andrew Cuomo included liability protections in an executive order.
The groups also argue they shouldn’t be sued for actions they take to follow the governor’s orders related to shutting down nonessential medical procedures because of COVID-19.
They ask for three specific protections, including to be “immune from civil liability for any injury, death or loss that results from their acts or omissions while rendering, withholding or delaying medical or other care and services unless it is alleged and proved” that the company or group “was grossly negligent.”
“The covered acts or omissions include those related to personal protective equipment and COVID-19 tests,” the letter specifies.
It’s already clear that nursing homes, which are connected to more than half of the state’s deaths, will face legal action.
The daughter of a woman who died after she contracted COVID-19 at Healthcare at Foster Creek, a nursing home where 29 staff and residents have died, has sued for $1.8 million.
The request for protections from lawsuits may prove controversial. In New York, Cuomo’s order was met with outrage.
And advocates suggested nursing homes should be responsible for keeping residents safe.
“People have a right to seek recourse,” says Ruby Haughton-Pitts, the Oregon state director of the AARP. “The facilities should know they will be held responsible and should provide quality regardless of the situation.”
Gov. Brown has not decided how to respond.
“We have been having ongoing internal conversations about what solutions might be feasible given the particular circumstances within Oregon—which are different from those in New York referenced in the letter—but no decisions have been made just yet,” says Brown’s spokeswoman Liz Merah. “We plan to engage stakeholders, including hospitals, nurses, physicians and trial lawyers, in the coming weeks.”