A striking bipartisan consensus arose in the Senate Judiciary Committee last month on the fact that the Trump administration hasn’t done its part to assure businesses and schools on how they can open responsibly, leaving many unsure how to proceed and worried about the consequences if they get it wrong.

The committee focused primarily on the question of whether to give businesses immunity from lawsuits over COVID-19. That wouldn’t be a good idea. But luckily, the hearing unearthed the real remedy to reassure businesses that it’s safe to reopen: giving them clear federal rules that will protect both well-meaning business owners and the ability to hold bad actors accountable.

David Vladeck, a law professor at Georgetown University who once headed the Bureau of Consumer Protection in the Federal Trade Commission, testified to the Judiciary Committee that companies generally are not vulnerable to negligence lawsuits if they can show they reasonably followed government safety regulations. As a result, he said, “the best way to reduce liability is for agencies to step up and issue guidelines.”

Lindsey Graham, the South Carolina Republican who chairs the Senate Judiciary Committee, asked every witness in Tuesday’s hearing — a group that included advocates for business, labor, and academia — whether “the country would be better off” if OSHA issued industry-specific guidelines about how businesses should protect workers and customers. The witnesses all said yes. (The labor representatives added, however, that it also mattered whether anyone would enforce those rules.)

Given how easy it is to transmit the coronavirus, it would be hard for plaintiffs to definitively establish where they or a deceased family member caught COVID-19, let alone that it resulted from a business’s negligence. Even if someone wanted to try to make such a claim, many lawsuits would be blocked either by state laws that route injury complaints through the workers’ compensation insurance system or by employment agreements that require workers to go to arbitration rather than the courts.

It would be terrible for Congress to reduce the threat of lawsuits for employers in egregious situations. The prospect of being sued for negligence helps to hold companies accountable for public-health and safety regulations that the government can’t enforce through inspections alone.

Tobias L. Millrood is a lawyer and the president-elect of the American Association for Justice. He wrote a beautiful the below op-ed for The NY Times.  He makes me proud to be a trial lawyer who advocates for nursing home residents.

Just three weeks ago, family and friends did their best to comfort my six siblings and me via videoconference as we mourned my mother, Sylvia. Our grief was compounded by the circumstances of her death: She died at 82 after contracting the coronavirus at her assisted living facility, one of the victims of an outbreak that killed 20 patients and sickened dozens of other residents and staff members.

It has also been compounded by the divisive rhetoric from elected officials seeking to prevent families from seeking redress for their loved ones’ unnecessary suffering.

While thousands of Americans perish daily from Covid-19, the Senate majority leader, Mitch McConnell, has chosen a scapegoat to distract from our government’s failures. Claiming that the disease will become “the biggest trial lawyer bonanza in history,” Mr. McConnell is drafting legislation to protect the nursing home industry from lawsuits — even though home residents and workers represent a third of the country’s coronavirus deaths.

I am president-elect of the association of trial lawyers whose mission is to preserve access to civil justice for all Americans. My group, the American Association for Justice, opposes Senator McConnell’s efforts. Yet that is not the main reason I am against giving blanket immunity to corporations that fail to take reasonable precautions to stop the spread of Covid-19. My mother’s avoidable death has made this fight more personal than ever before.

My mom grew up in a working class part of Philadelphia. She dreamed of going to college, but her parents needed her to earn money to support the family. Ultimately, after meeting my father, a family practice physician, she found her own full-time employment as the mother of seven children.

Beyond her children and grandchildren, my mom was passionate about art and creativity in all its forms. Later in life, she converted this hobby into a profession, becoming a seamstress and dressmaker: “Fashioned for you by Sylvia.” She made bridal and bridesmaid dresses for all the women in the family, prom dresses for teenagers throughout the area and unique paintings and decorations for her 16 grandchildren.

At her assisted living facility in Pennsylvania, she fostered expansion of an art center so she could continue her craft and spread her passion to others. After suffering a fall, she moved into a rehabilitation wing.

My mother became ill with Covid nearly two weeks after a nurse on her floor tested positive. After my video chat with her on the day Mom tested positive, I realized how dire the situation had become. The aide who held the iPad wore only a thin flimsy mask, not the respirator masks we have grown accustomed to seeing on health care workers treating highly contagious patients.
It was clear to me then that the center was not even remotely equipped to handle the outbreak, and my concerns only grew after days of haphazard communication and lack of transparency. But it should have been prepared. While the magnitude of this pandemic is shocking, the fact that there is one should not be. Public health experts have been predicting this for years, and recent swine and bird flus served as test runs for today.

As my family grieves, eventually I will be asked whether the facility should be held accountable. I’m certainly not thinking about that now, and truthfully I do not know where my feelings will land. Evidence continues to mount that many nursing homes put profits for their private equity investors above protecting their patients.

But I also know my mom would feel loyalty to the employees, who had no choice but to work and had no protection of their own.
What is most important is that families deserve the right and opportunity to make this decision for themselves. It is morally reprehensible for lawmakers to say it is more important for corporations to profit than for nurses, caregivers and patients to be protected. Doling out immunity will drive a race to the bottom, with businesses having little incentive to stop the spread of a virus that has devastated so many families.
For example, just one day after Utah legislators passed a bill granting Covid-19 immunity to a host of industries, two businesses were reported to have told staff to ignore quarantine-related guidelines. Other states have similarly passed or are considering immunity legislation to give cover to corporations that engage in misconduct.
Only 10 people could attend Mom’s funeral because of restrictions on gatherings here. My brother brought some yarn that she would use when creating art projects with her granddaughter, and we each held onto the long thread so we could be connected while standing apart.
This is what death and mourning looks like in Covid-19 America. It is a cruel irony that industries that sickened or killed thousands of people because of lack of protection are now demanding it from Congress.

The Food and Drug Administration has granted remdesivir emergency use authorization to treat the most severely ill COVID-19 patients. The emergency use authorization is not the same as FDA approval.  It is not considered a cure.

The FDA action specifies the drug may be used for both adults and children with suspected or confirmed COVID-19 diagnoses who are severely ill with low blood oxygen levels or who may be on a ventilator. However, that does not mean the drug should be used for all hospitalized patients.

“Given there are no adequate, approved, or available alternative treatments, the known and potential benefits to treat this serious or life-threatening virus currently outweigh the known and potential risks of the drug’s use,” the FDA wrote in a press release.

The FDA’s decision expands doctors’ ability to use remdesivir on the most severe cases. Previously, physicians were limited to trying the drug in clinical trials or in what’s called compassionate use for patients who have no other treatment options. It has only been used for the most severe cases of COVID-19, and is only administered through an IV.

The FDA’s emergency use authorization increases access by allowing any doctor “to prescribe remdesivir for their patients who are hospitalized with COVID-19,” Dr. William Schaffner, an infectious disease expert at Vanderbilt University Medical Center, explained.

The FDA wrote that possible side effects include, “increased levels of liver enzymes, which may be a sign of inflammation or damage to cells in the liver; and infusion-related reactions, which may include low blood pressure, nausea, vomiting, sweating, and shivering.”

O’Day said the company hopes to expand usage for patients earlier in the course of illness, before patients become sick enough to be hospitalized. Future methods of remdesivir delivery could include an injection or inhaler, but that would likely take months or even years to develop.

President Donald Trump made a number of false and misleading claims to advance his case that the US is ready to reopen for business. Most concerning was his insistence that the US has mastered what public health experts say must be step one to reopening: widespread testing. The US’s daily testing capacity is insufficient to safely reopen businesses. Trump claims the US has actually conducted more tests than all other countries combined. So Trump’s claim isn’t even close to correct. It also overlooks that while the raw number of tests conducted in America sounds impressive, it lags behind countries like Germany and Canada in terms of tests per one million people.

“I think I read yesterday a report that we’ve done more than everybody — every other country — combined,” Trump said, adding later: “We’ve tested more than every other country in the world even put together.”

According to Worldometer, a site that tracks coronavirus data by country, over 30 million tests have been conducted across the world, and just over 5 million have been done in the United States. The number of tests conducted in China, for instance, isn’t accurate but the US is nowhere close to doing more testing than all other countries combined.

The reality is that while US coronavirus deaths are growing at a slower rate than they were a week ago, it’s still too early to say whether the worst is past us.  At another point, Trump was asked how people in South Carolina could be protected from the governor of Georgia’s decision if it turns out to be a bad one. “We’re going to find out,” he said in response.

 

As we mentioned a few days ago, South Carolina will start testing every nursing home employee and resident for COVID-19 on Monday. That adds up to about 40,000 people. SCDHEC Director of Public Health Dr. Joan Duwve said nursing home residents make up about 28 percent of deaths in South Carolina. Experts believe the final number will be above 40%.

There are 194 nursing homes total but the first wave will focus on 74 of them, about 15,000 people. Twenty-seven of those are considered to have “heightened risks.” The other 47 volunteered to test.  The tests will help them conserve personal protective equipment by getting patients out of isolation faster.  The facility will be able to rule out patients with coronavirus symptoms who do not test positive.

Dr. Duwve says that it will give families peace of mind.

“We are ready to help long care facilities to help protect this vulnerable population and the important critical staff who care for them,” Duwve said.

”The test does help us decide how best to prevent ongoing transmission in our nursing facilities,” Duwve said. “So if we don’t know who has COVID-19 then we can’t stop the transmission inside these facilities.”

DHEC wants to finish testing all nursing homes by the end of the month.  Until then, the answer on nursing home infections and deaths remains vague. We still don’t know how many staff versus the number of patients are coming down with, spreading, or dying from COVID-19. Meaning that, as of now, the agency is not requiring a breakdown of the staff and health care workers who are free to leave the facility and the patients who have been shut in with the disease for nearly two months.

 

Nursing homes continue to beg the Trump Administration to provide immediate access to ample PPE for frontline and healthcare workers to keep them safe during the coronavirus pandemic. Nursing homes report they have to “scrounge for [personal protective equipment] in places that they can’t even begin to describe.”

“PPE literally stands between us and infection. It stands between health and illness, and it is so critically important, as is the access to testing,” Carol Silver Elliott, president and CEO of Jewish Home Family, said during a press conference.

The call for PPE is a part of the nursing home industry’s lobbyists’ five-point action plan for policymakers to help protect seniors and workers as some states start to reopen. The organization wants states to provide assurances that they won’t reopen without first ensuring seniors are safe and protected under the plan.

The plan also calls for the recognition of frontline workers in nursing homes, assisted living, affordable housing and home- and community-based settings; access to on-demand access to rapid testing and results for seniors and providers; and for Congress to allocate $100 billion to cover COVID-19 needs and provide support to aging services.

The funding would be used to provide hazard pay for frontline workers, federal housing assistance, support to deliver telehealth, access to loans, Medicaid increases and administrative relief.

“Our nation has undervalued and underinvested in older adults for far too long. It didn’t have to come to this, but here we are. These five essential actions must be taken now,” LeadingAge President and CEO Katie Smith Sloan said.

Smith Sloan added that the organization’s hopes were raised when it was announced that FEMA would provide PPE to nursing homes, but they were quickly dashed when they learned it would only be two weeks worth of supplies.

 

 

The insurance companies are now blaming lawyers for the global pandemic.  All of a sudden, corporate interests are coordinating a public relations and marketing scheme to get bailed out, then given immunity for negligence or financial exploitation, and then blame the lawyers for the economy. you can see articles in Wall Street Journal, Forbes, and other corporate publications.  The insurance companies do not want to provide coverage that has been paid for in premiums.  The insurance companies are blaming lawsuits but the lawsuits are only necessary because the insurance companies refuse to comply with the contract for insurance they agreed to and profited from for years.

One of the insurance and corporate arguments is that “litigation” would increase uncertainty for big business and corporations.   But it would increase certainty  and justice for victims of fraud, criminal exploitation, and gouging.  Another argument is that business-interruption coverage should not pay out for the pandemic’s damage, even though those risks should be covered in these policies, and premiums were collected for the exposure.  They state that making them comply with the contract would violate the integrity of contracts set forth in Article I of the Constitution.   If implemented, it would bankrupt the insurance industry to prop up other parts of the economy. Nonsense. Chicken Little arguments.

The government has provided the financial resources to deal with this pandemic with the Fed’s extraordinary lending actions and the $2 trillion aid package passed by Congress. These will be tough times for all businesses. Insurers don’t need but are asking for special treatment.  They are asking Congress to rewrite every insurance contract in the country by arbitrarily granting immunity from any litigation related to the coronavirus virus.  Meanwhile, the insurance companies are saving  billions on casualty claims. Eliminating people’s rights to a legal remedy when they have been injured by the negligent, reckless or intentional acts of others is extremely profitable for the insurance industry. The insurance industry has billions of dollars in reserve to pay claims from all of the premiums collected and its investments. But in times of crisis, the insurance industry lobbies to keep those billions for itself, instead of pay claims.

Most health-care providers and nursing homes have malpractice insurance, and insurers are directing them to establish explicit treatment protocols as a prophylactic. But it’s unclear whether insurers will cover any coronavirus legal claims. Congress already provided liability protection for many health-care providers.  Congress last month legislated liability protection for N95 mask manufacturers that feared lawsuits if health-care workers wearing masks got sick.

Liability immunity, known more commonly as “tort reform” by those of us who have been sold this bill of goods on a statewide basis, has been the goal of the insurance and hospital-chain fat cats for decades, do not let them take advantage of this pandemic to push their agenda.  Most Americans cherish their freedoms and thus all of the Bill of Rights, using this event to further strip patients from their 7th amendment right to a jury trial regarding negligent medical care via a broader Congressional “liability reform” is hypocritical at best and a sweeping disaster to our Constitutional freedoms at worst.

Long-term care facilities must comply with a  CMS agency rule governing their use of predispute arbitration agreements as a condition of receiving Medicare and Medicaid payments, a federal court in Arkansas said.  The rule is a valid exercise of the agency’s authority, was adopted according to federal procedural rules, and doesn’t conflict with the Federal Arbitration Act, the U.S. District Court for the Western District of Arkansas said last week.  The court granted summary judgment for the Health and Human Services Department in a lawsuit brought by Northport Health Servs. of Arkansas LLC and other nursing homes.

A federal judge sentenced President Donald Trump’s friend, longtime operative Roger Stone, to only 40 months in prison for lying to Congress and tampering with a witness in an effort to protect Trump. Stone was convicted at trial in November of charges related to false statements and threatening a witness.

He was not prosecuted, as some have complained, for standing up for the president, he was prosecuted for covering up for the president,” said Judge Amy Berman Jackson about Stone.  “The truth still exists, the truth still matters. Roger Stone’s insistence that it doesn’t … are a threat to our most fundamental institutions,” Jackson said. “There was nothing unfair, phony, or disgraceful about the investigation or the prosecution.” Jackson said.

If Stone is pardoned, his conviction would be voided, and he would not face any criminal sentence after Attorney General William Barr and Trump improperly interfered in the prosecution due to political considerations and because of Trump’s long relationship with Stone. Barr forced the nonpartisan U.S. attorney for the District of Columbia to recommend a ridiculously lenient prison term than the seven to nine years that guidelines mandate.  The four trial prosecutors quit the case in protest.

More than 2,000 former Justice Department employees have publicly called on Barr to resign for his reversal of the career prosecutors’ sentencing recommendation in the case.

“Each of us strongly condemns President Trump’s and Attorney General Barr’s interference in the fair administration of justice,” the letter said, specifically citing the Stone case.

 

 

 

President Donald Trump just admitted in the course of paying $2 million in court-ordered damages to resolve accusations that he and his family stole from charities. Wow.  Here are just some of the incredible admissions.

1. When he had the Trump 2020 campaign illegally place the Trump Foundation’s name on promotional materials and ceremonial checks related to a fundraiser that he, as a candidate, held for military veterans in January 2016. The Trump Foundation as a charity can’t participate in political campaigns.

2. When he used $100,000 of the Trump Foundation’s money—which was raised from other people—to settle a zoning dispute that his home was having with the city of Palm Beach, Florida.

3. When he used $157,820 of the Trump Foundation’s money to settle a legal dispute with a man who’d won a $1 million hole-in-one prize during an event held by another charity at a Trump golf course in New York.

4. When he used $25,000 of the charity’s money to make a donation to a political group that supported then–Florida attorney general Pam Bondi at the same time that Bondi was considering whether to sue “Trump University” for defrauding its “students.” Bondi did not but other attorneys general did, which led to another multimillion-dollar fraud settlement that Trump paid since taking office. Blondie Bondi now works for the White House as a special adviser to Trump on matters related to impeachment.  Do they understand irony?

5. When he used the Trump Foundation to pay $5,000 to put an advertisement for the Trump International Hotel in D.C. into a program distributed at another charity’s fundraising event.

6. When he used $10,000 of the Trump Foundation’s money to buy a painting of himself that he hung inside his Doral resort in Miami.

7. When he used $32,000 of the Trump Foundation’s money to pay “stewardship” costs for a piece of property in Westchester County, New York, that he’d donated to a land preservation group (but only after attempting unsuccessfully to build a golf course and luxury housing on it).