In recent years, lawmakers have been caught stealthily copying and pasting identical corporate-friendly provisions into law in states across the country. It appears that is now happening again as politically connected hospital and nursing home executives seek to shield themselves from civil litigation and government prosecution during the COVID pandemic.
A review of New York, Massachusetts and North Carolina’s controversial new liability shield provisions shows that nearly identical immunity language benefiting nursing home and hospital executives was inserted into law by elected officials whose political apparatuses received significant campaign contributions from the nursing home and hospital industries.
The spread of the corporate immunity provisions — which appear to have originated in New York Gov. Andrew Cuomo’s administration — comes amid a spate of coronavirus deaths that critics say was preventable and made worse by the liability shields. Senate Republican leader Mitch McConnell is currently pushing a broader, national version of immunity for corporate executives.
"Our legislation was the product of negotiations between the chamber and the legislature and while we always engage with stakeholders no one else wrote the final product -- which, again, was to help ensure we had the expanded health care apparatus needed to fight this pandemic,” said Cuomo’s spokesperson, Rich Azzopardi. “I have no information about how other states may have adopted this publicly available language."
To date, 19 states have enacted some form of immunity for the hospital and nursing home industries during the pandemic. In general, these new policies shield nurses, doctors and other frontline health care workers from liability when they are treating COVID patients.
However, New York, Massachusetts and North Carolina go further: unlike other states, the identical language added to their laws explicitly define health care providers as including “a health care facility administrator, executive, supervisor, board member, trustee” or other corporate managers.
That exact word-for-word clause appears in emergency legislation in all three states. In practice, it extends immunity to corporate officials who are not on the medical frontlines, but who are making life-and-death decisions across their companies.
“The new measures granting immunity to health care providers and professionals go well beyond protecting front-line workers from lawsuits -- many also provide immunity to administrators who make unreasonable and dangerous, even lethal, decisions,” said Syracuse University law professor Nina Kohn. “New York, Massachusetts, and North Carolina take protection for corporate owners and executives to a whole new level by explicitly granting immunity to board members, trustees, and directors.”
“This is extraordinary protection which is in no way in the public interest,” Kohn said. “These states are explicitly and unabashedly giving for-profit corporations and corporate executives the green light to make unreasonable decisions that put vulnerable people in imminent danger, and letting them know that they don’t have to worry about being held legally accountable for the avoidable human damage that results.”