SACRAMENTO, Calif., April 23, 2020 /PRNewswire/ -- Hackard Law, a California estate, trust and elder rights litigation firm, today opened an investigation into California nursing homes and assisted living facilities amid COVID -19. The investigation began after senior advocates raised concerns over a new request to Governor Newsom.
Groups representing California's nursing homes and assisted living facilities are pushing for an order that would grant them sweeping immunity for decisions made in the COVID-19 pandemic. An order, if issued, would violate a long-held rule that a law cannot apply retroactively if it would destroy a vested right. Moreover, it would likely be unconstitutional.
Skilled nursing and assisted living facilities are experiencing unprecedented challenges from the Coronavirus pandemic across the length of California. At least 261 skilled nursing facilities – 21 percent – have reported COVID-19 cases among either a resident or health care worker. On April 19 the California Department of Public Health requested daily updates on the number of COVID-19 patients in all skilled facilities. At least 91 people have died from COVID-19 in assisted living facilities.
It's unclear whether Governor Newsom is seriously considering the request from California's nursing homes, hospitals, assisted living facilities and other health care providers to grant them legal immunity for their decisions during the Coronavirus crisis. All these groups want protection from "future legal action as long as that liability protection does not excuse willful misconduct."
Advocates for elders argue that legal immunity is dangerous. The CDC has issued guidance and strategies for dealing with COVID-19 cases in Long-term Care Facilities and Nursing Homes. Blanket immunity to facilities that may have failed to meet these guidelines and to protect residents from reasonably foreseeable harm would hurt California's most vulnerable population – its elders.
California's separation of powers doctrine set forth in Article III, Section 3 of the state Constitution provides in part: "The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution." This is a limitation, not a grant of power.
The request for legal immunity is apparently a request for an executive order – an order affecting all elders in skilled nursing and assisted living facilities. Power to grant immunity resides with California's Legislature, not the Governor. The Governor does not have the power to shield senior care facilities from Coronavirus lawsuits. The Coronavirus pandemic cannot nullify or infringe on our citizens' constitutional rights. Emergency measures are certainly justified up to a point – granting wholesale immunity to California's nursing homes and assisted living facilities from negligence and wrongful death claims goes well beyond that point.
Families or residents who are concerned about COVID-19 issues in California nursing homes and assisted living facilities can learn more about the firm's investigation at [email protected].
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California Estate, Trust & Probate Litigation Attorneys
SOURCE Hackard Law