Opinion: Legal responsibility safety for well being care business can be an pointless barrier to justice
Jake Cornett and Paula Boga
Cornett is the executive director of Disability Rights Oregon. He lives in Portland. Boga is the managing director of The Arc of Oregon. She lives in Keizer.
Shortly after 34 people with COVID-19 died at the Healthcare at Foster Creek nursing home last April, the Oregon health lobby went to Governor Kate Brown with a request: Would she give providers limited immunity to civil litigation during the COVID-19 emergency ? , similar to the executive action New York Governor Andrew Cuomo took at the start of the pandemic?
Brown rightly ignored the request. The legislators have so far refused to grant such liability protection. However, health care lobbyists have only continued to push for laws protecting hospitals, doctors, and insurers from civil claims for injury or death during COVID-19, except in cases of gross negligence. In the upcoming legislature, we urge Oregon elected officials to remain determined to reject such a proposal, which would deny justice by dramatically rewriting Oregon liability laws.
Under current medical liability law, doctors, health conservation organizations, and hospitals who harm Oregonians through negligence can be held responsible for that harm and ordered by a court to make a consumer a whole. These cases are hard to win as the deck is stacked in many ways against patients who need to prove that the medical provider has not provided the same care that a normally cautious doctor would have given another patient in similar circumstances. However, these laws play an important role in ensuring that health care companies take seriously their responsibility to provide quality care to all patients, including people with disabilities.
However, a legislative proposal under consideration would protect companies from lawsuits for failure to meet these responsibilities. According to the proposal that Disability Rights Oregon was able to examine, “gross negligence,” a nearly impossible standard that requires a high degree of recklessness, must be demonstrated. Introducing such a high liability limit would remove an important incentive for companies to act responsibly.
The early draft also appears to give hospitals liability protection, even for non-COVID-19 cases, as long as the patient visited a doctor or hospital during the COVID-19 emergency period. It remains to be seen who exactly would receive this protection and other details of the bill. However, let’s be clear: this concept of mass immunity to lawsuits is in no way acceptable.
Such legislation would deny justice for harm done to people like Sarah McSweeney, a 45-year-old Oregon City woman. Sarah liked to go out for coffee, do her hair, and go out with friends. She also experienced mental and physical disabilities. On April 21, Sarah was admitted to Providence Hospital with a mild fever. Hospital bureaucrats immediately urged their guardians to sign a non-resuscitation order for Sarah – as if a disability should deserve her less life-saving efforts. Sarah’s guardian and support team declined, stating that Sarah’s life was full and happy. Sarah tragically died on May 10th. When investigating the Oregon disability rights, we found multiple records and statements about her “quality of life” and continued concern that the hospital may not have provided Sarah with the medical care she needed because of a disability.
We believe Sarah’s family and loved ones deserve justice for Sarah. A change in Oregon’s liability laws to protect hospitals from negligence would eliminate this.
For the 950,000 Oregonians with disabilities who are struggling to get the same care as everyone else, removing this protective layer would result in less monitoring of their health and safety during a public health crisis and fewer opportunities to remediate harmful practices.
There has been no spate of COVID-related medical liability lawsuits since the pandemic began. This proposed legislation is a solution in search of a problem. With the Oregon legislature meeting in a few weeks’ time, our lawmakers shouldn’t stamp a New York solution where Oregonians with disabilities, older adults, and people of color – the people most harmed during COVID – pay the price.
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