Andrew Cuomo: License to Kill
The story about Governor Andrew Cuomo has been getting a little more press lately, but for those of us who followed it, this was all evident back at the beginning of the pandemic. In short, Cuomo ordered thousands of COVID-19 positive patients back into nursing homes, where as you would expect, the virus spread rampantly and killed many thousands of people. Beyond this, he also allowed the nursing home industry to cut many corners, virtually ensuring viral spread. Subsequently, to protect the nursing home industry from the legal liability that would ensue when thousands of people realized that their loved ones died because of their negligence, he passed a “liability shield” protecting nursing homes from liability (and which was written by the nursing home industry itself). In other words, if your family member died of COVID-19 in a nursing home, despite any negligence that might have occurred, you aren’t allowed to sue. To date, 26 other states have similarly turned Cuomo’s liability shield into law.
A while back I wrote about the litigiousness of the United States, and how it wasn’t a consequence of some overly litigious quality of the American public, but was rather symptomatic of the failure of American government. In other countries, the government more effectively regulates the destructive nature of the private sector, so that corporations are prevented from engaging in profitable practices that are overly harmful to the public good, such as skimping on safety precautions at COVID-19 infected nursing homes. However, in the United States, we can count on the government for very little. It generally fails to regulate industry when it is required, and if the government does pass regulation, it can’t be counted on to follow through with its regulatory role by employing the proper oversight. In other words, even if we have laws on the books, we often don’t have the investigators and prosecutors to enact them.
As a result, we have little choice but to sue. We can’t expect the government to protect us, as it so often doesn’t, and then when we end up being harmed by actors in the private sector, such as a negligent nursing home, we can’t count on the government to prosecute the offenders. So, if we want any kind of justice—and it’s a poor form of justice at that—we have to “take matters into our own hands,” by finding a lawyer that will prosecute our case in civil court.
This is what makes Cuomo’s liability shield so egregious. As the Governor of New York, he is the person who is supposed to be most responsible for ensuring that the public good is served rather than private interest. But as with many American politicians, we can’t expect anything approximating this, as so many of them are in the pocket of big business. That is, we can’t expect him to pass regulations that protects the public nor can we expect him to enact those regulations that do exist. But this just makes him a standard American politician. What makes him even worse is that he has taken away the one private recourse that people have to seek justice: litigation.
As mentioned, civil litigation already represents a failure of government. If government were working properly we wouldn’t need to sue, because it would properly regulate the private sector and prosecute any offenders. But we can’t count on the government to protect us, so we have to take the law into our own hands, by pursuing civil litigation. But a liability shield takes the one tool that we have—however inadequate it is, and however much it is the consequence of a failed state—and eliminates it. The government is not going to help you, but worse yet, the government is also going to prevent you from trying to help yourself (however much a financial settlement can help when a family member dies through corporate malfeasance). And with no recourse to punish the offenders, this means that there are actually zero consequences for the actions of the private sector. The government isn’t going to come after them, and the government is going to prevent you from going after them. Therefore, they can act with complete impunity.
If the United States were a functioning democracy, nursing homes would be heavily regulated and subsidized. But in the United States, being granted a license to run a nursing home doesn’t mean that you’ve met a rigorous set of standards guaranteeing high quality of care and comfort. Instead, in New York state and 26 others, it means you’ve been granted a license to kill.