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Protect or Profit?

Published on May 21st, 2020

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.
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