Governor Cuomo is in hot water on three fronts: the COVID-19 limitation of liability for nursing homes order he did, the undercounting/reporting of nursing home deaths, and the sexual harassment in the workplace and otherwise. This note will focus on the hypocrisy with respect to the first of these: the COVID-19 limitation of liability for nursing homes.
According to two surveys, Husch Blackwell and Mayer Brown, BROADER than nursing home COVID-19 limitation of liability legislation were passed in 16 states with similar legislation pending in other states.
In addition, the second stimulus package was held up for months due to an ultimately failed but persistent effort by then-Majority Leader Mitch McConnell to get included in the legislation FEDERAL COVID-19 limitation of liability protections for business.
I agree what Cuomo did in limiting COVID-19 liability for nursing homes was awful. We must keep in mind while we condemn that decision that his decision is of a piece with the appalling protections given in all these states to companies who do not get COVID, get hospitalized and die as opposed to people who do.
So while there are reasons to be upset at Cuomo for the alleged under-reporting and sexual harassment, the broader issue is with the political class across America who sold out the people in their states in a pandemic. As President Biden said about the premature reopening by Governor Abbott in Texas, this is Neanderthal Thinking.
Take Mississippi. As detailed in the surveys presented, the immunities for businesses do not apply to a defendant, or any employee/agent who acted with “actual malice or willful, intentional misconduct.” However, Mississippi is one of the few states that have specifically mentioned the heighted burden of clear and convincing evidence that plaintiffs have to prove in a COVID-19 liability case as compared to a preponderance of the evidence standard that applies normally in civil cases.
Think about that. A standard so high that you cannot get ordinary civil remedies in tort, waivers of liability in contracts that put you in a situation of being alleged to have assumed the COVID-19 risk when you use a service like a dentist, no remedy if you are working in a place that is a hotspot like a meat packing plant or a warehouse and get it, forget criminal liability due to prosecutorial hesitancy in exercising their discretion with such a standard in place and on and on.
For Texas, maybe Governor Abbott’s move should be seen as a cynical one that is done to try to help with business and health sector pressure on the Texas legislature to accelerate Texas COVID-19 limitation of liability legislation. After all, Texas businesses are feeling left out in the cold by his order that went into effect on March 10, 2021.
Let’s protect people not companies. Repeal all Covid-19 limitations of liability protections for companies.
Benjamin G. Davis, Retired Professor of Law, University of Toledo College of Law, Ohio.
Suggested citation: Benjamin G. Davis, Cuomo COVID-19 Hypocrisy: A New Level In Neanderthal Thinking, JURIST – Academic Commentary, March 12, 2020, https://www.jurist.org/commentary/2021/03/benjamin-davis-cuomo-covid19-nursing-homes/.
This article was prepared for publication by Vishwajeet Deshmukh, a JURIST staff editor. Please direct any questions or comments to him at commentary@jurist.org.
