Hot Topics in Business Law

May 6, 2020 |

Article 1: “‘Got My Blood Boiling’: Florida Nursing Homes Ask Governor for Immunity from Coronavirus Lawsuits”

https://www.usatoday.com/story/news/health/2020/04/11/coronavirus-florida-nursing-homes-covid-lawsuits-ron-desantis/2977441001/

According to the article, Florida’s largest advocacy group for long-term care providers is requesting protection from lawsuits for health care professionals engaged in responding to the COVID-19 outbreak.

The Florida Health Care Association sent a letter to Governor Ron DeSantis recently requesting “immunity from any liability, civil or criminal” under certain conditions for nursing homes, hospitals and other facilities.

The group is the most recent in a series of health care associations seeking legal immunity amid the pandemic, when hours are long and staffing and equipment are short.

Brian Lee, executive director of Families for Better Care, a nonprofit group advocating for nursing home residents, said the letter was the equivalent of “asking for forgiveness in advance.”

“It just got my blood boiling. I was shocked by the temerity of the industry to ask for blanket immunity from lawsuits … and to do it during the middle of this crisis. It’s appalling, and it’s a total slap in the face of families,” Lee said. “All of their focus should be on saving our families lives, but it shows that, at the end of the day, they care more about their own protections. It’s gross.”

But the FHCA argues that “in the midst of this unprecedented crisis, (health care professionals) should be able to direct their skills and attention to helping individuals who need them, and not have to worry about being sued for making tough decisions while trying to comply with government directives,” spokesperson Kristen Knapp said.

Florida is reporting more than 18,000 confirmed coronavirus cases in the state.

The state’s Agency for Health Care Administration said recently that the industry’s letter had been received and will be reviewed. “The state is evaluating all options to assist health care workers and facilities on the front lines of the response to COVID-19, although there has been no final decision on this particular request,” communications director Katie Strickland said.

A recent analysis of federal inspection data found that a majority of U.S. nursing homes (75%) have been cited for failing to properly monitor and control infections in the past three years – a higher proportion than previously known.

The Life Care Center of Kirkland in Washington state, which U.S. authorities believe to be the site of the first outbreak in a long-term facility, received a five-star overall rating by federal regulators but previously had been criticized for its infection control procedures, according to the investigation.

Recently, a woman whose mother died of the coronavirus at the Kirkland facility filed a wrongful death lawsuit against the facility’s parent company, Life Care Centers of America.

A large number of coronavirus lawsuits have also targeted colleges, cruise lines and other businesses.

Discussion Questions

1. What is legal immunity?

Legal immunity is simply freedom from legal liability. As the article indicates, the Florida Health Care Association is seeking freedom from both civil and criminal liability for health care services rendered during the Covid-19 pandemic.

2. As the article indicates, Brian Lee, executive director of Families for Better Care, a nonprofit group advocating for nursing home residents, claims that the Florida Health Care Association’s request is the equivalent of “asking for forgiveness in advance.” Said Mr. Lee:

“It just got my blood boiling. I was shocked by the temerity of the industry to ask for blanket immunity from lawsuits … and to do it during the middle of this crisis. It’s appalling, and it’s a total slap in the face of families,” Lee said. “All of their focus should be on saving our families lives, but it shows that, at the end of the day, they care more about their own protections. It’s gross.”

Critically assess Mr. Lee’s quote.

This is a subjective assessment, so student responses will likely vary.

3. Do you favor or disfavor legal immunity for health care providers during the Covid-19 crisis? Why or why not?

This is an opinion question, so student responses will likely vary.

Article 2: “New Yorkers Can Now Legally Get Married Via Zoom”

https://www.huffpost.com/entry/wedding-new-york-zoom-legal_n_5e9d08b4c5b6ea335d5df1d9

According to the article, New York Governor Andrew Cuomo recently issued an executive order allowing New Yorkers to obtain a marriage license remotely and permitting clerks to perform ceremonies via video conference, a practice that is usually banned under existing laws.

“There is now no excuse when the question comes up for marriage,” Cuomo joked during a recent press briefing. “You can do it by Zoom. Yes or no.”

“The Executive Order will temporarily suspend a provision of law that requires in-person visits,” said a press release from the governor’s office.

Many marriage bureaus have temporarily closed as a result of the coronavirus outbreak. In New York, the epicenter of the United States outbreak, stay-at-home measures have been extended until at least May 15, and it could be many months before social distancing measures are lifted to allow gatherings for events such as weddings.

So-called Zoom weddings are already taking off around the world as friends and families dial in via video conferencing tools to watch couples tie the knot, but typically these ceremonies are not legally binding. Some couples either obtain marriage licenses beforehand or put the official ceremony on hold until after the pandemic. Cuomo’s executive order allows couples in the Empire State to get hitched ― officially ― while keeping their social distance.

Similar measures have been introduced elsewhere. In Colorado, couples are now allowed to apply online for marriage licenses. And in Ohio’s Cuyahoga County, couples with special circumstances (such as suffering from serious illness, health insurance issues or if working in health care), can obtain their marriage license via video call.

Discussion Questions

1. What is an executive order? What is the legal effect of an executive order?

Executive orders may be issued by either the president of the United States (a federal executive order) or a state governor (a state executive order). At the federal level, the legal basis for executive orders derives from Article 2 of the U.S. Constitution, which gives the president broad executive authority to use his discretion to determine how to enforce the law or otherwise manage the resources and personnel of the executive branch. The ability to make such orders is also based on express or implied acts of the U.S. Congress that delegate to the president some degree of discretionary power.

Executive orders are subject to judicial review and may be overturned if the orders lack legislative or constitutional support. Executive orders have significant influence over the internal affairs of government, deciding how and to what degree legislation will be enforced, dealing with emergencies, waging wars, and fine-tuning policy choices in the implementation of statutes. Once issued, executive orders remain in force until they are canceled, revoked, adjudicated unlawful, or expire on their own terms. At any time, the president may revoke, modify, or make exceptions to any executive order, whether the order was made by the current president or a predecessor.

At the state level, governors have similar authority to issue executive orders applicable to their jurisdictions.

2. Were you surprised to learn that weddings via video conferencing are generally illegal? Explain your response.

This is an opinion question, so student responses may vary. In your author’s opinion, the legal system is not the quickest segment of our society to embrace technology. It may come as a surprise to some students that the use of such technology to sanction matrimony is not already widely accepted.

3. In your reasoned opinion, should weddings via video conferencing be legal, and should that legality continue beyond the social distancing necessities of the Covid-19 outbreak? Explain your response.

These are opinion questions, so student responses may vary. In your author’s opinion, the law should embrace technology; wedding via video conferencing should be legal, and that legality should be permanent.

Article 3: “Navajo Nation Orders Protective Masks Worn on Reservation”

https://abcnews.go.com/Health/wireStory/navajo-nation-orders-masks-worn-public-reservation-70227580?cid=clicksource_4380645_10_heads_posts_headlines_hed

According to the article, the Navajo Nation is ordering all people on the tribe’s vast reservation to wear protective masks when out in public to help fight the spread of the coronavirus.

The Navajo Department of Health issued the emergency health order for the reservation, which includes parts of Arizona, New Mexico and Utah.

The Navajo Nation has been hit harder by the coronavirus than any other Native American tribe.
The tribe and the Navajo Area Indian Health Service said the number of positive coronavirus tests reached 1,197 as of April 18. The average age of the 44 people whose deaths are attributed to COVID-19 is 66.

Navajo Nation President Jonathan Nez said all residents should either buy or make masks to comply with the order.

Nez said in a statement announcing the order that tribal officials would consider even more aggressive requirements to curb the coronavirus.

“Some individuals think we’re using scare tactics or extreme measures, but we are losing lives here on the Navajo Nation, and I’m going to do everything I can to help save lives,” Nez said.
For most people, the coronavirus causes mild or moderate symptoms, such as fever and cough that clear up in two to three weeks. For some, especially older adults and people with existing health problems, it can cause more severe illness, including pneumonia, and death. The vast majority of people recover.

Residents of the Navajo Nation, including non-tribal members, are under a daily nighttime curfew. Lockdowns for the next two weekends will prevent them from leaving their homes, except in the case of an emergency, from dusk Friday until early Monday.

Drive-thru restaurants were ordered closed over the weekend, and people who sell hay, wood, food or other goods from the roadside cannot operate. Gas stations and grocery stores will be open but for limited hours and must regulate the number of people inside.

Navajo police are enforcing the curfews and lockdowns by issuing citations that can carry a fine of up to $1,000 and 30 days in jail. Essential workers are not subject to the restrictions.

Discussion Questions

1. As the article indicates, the Navajo Nation is ordering all people on the tribe’s reservation to wear protective masks when out in public to help fight the spread of the coronavirus. It is also ordering a nighttime curfew, and limited weekend lockdowns. Why are these orders coming from the Navajo Nation, as opposed to the states of Arizona, New Mexico, and Utah and/or the federal government?

The orders are coming from the Navajo Nation, as opposed to the states of Arizona, New Mexico, and Utah and/or the federal government, because the Navajo Nation has tribal sovereignty. Please see the answer to Article 3, Discussion Question Number 2 below for a definition and description of tribal sovereignty.

2. Discuss tribal sovereignty. From what legal source(s) does tribal sovereignty originate?

Tribal sovereignty in the United States is the inherent authority of indigenous tribes to govern themselves within the borders of the U.S. It is the freedom of Native American tribes to self-govern.

For additional discussion of the concept of tribal sovereignty, cases oft-cited with respect to tribal sovereignty, and congressional acts that have modified the nation-to-nation relationship between the federal government and Indian tribes, please see the article “An Issue of Sovereignty” included in Teaching Tip 2 of this newsletter.

3. As the article indicates, Navajo police are enforcing the Navajo Nation’s curfews and lockdowns by issuing citations that can carry a fine of up to $1,000 and 30 days in jail. In your reasoned opinion, is it appropriate for the Navajo Nation to criminalize non-compliance with the curfews and lockdowns? Why or why not?

This is an opinion question, so student responses may vary; however, it is quite common for a government authority to criminalize non-compliance with imposed curfews and lockdowns. In your author’s opinion, the potential fine and imprisonment are appropriate under the circumstances. A crime is a wrong against society, and for any person who refuses to comply with a directive that is reasonably necessary to keep society safe, that person should be subject to the enforcement authority of the government.