Worker advocates say hospitals are generally reluctant to acknowledge infections are occurring on their properties. If workers can’t prove they contracted COVID-19 at work, the hospitals can avoid paying workers’ comp.
(TNS) — Ramona Moll remembers grappling with an elderly dementia patient who showed all the signs of COVID-19: fever, difficulty breathing and a persistent cough. The patient had tried to bite her while the staff struggled to keep him from tearing off his mask and oxygen tubes, she said.
Days later, Moll said she began to develop a cough and grew so weak she could barely speak or climb stairs. She wound up hospitalized herself and tested positive for COVID-19. She became one of the first employees at UC Davis Medical Center to test positive for the disease.
Officials with the hospital say they investigated Moll’s case as a “possible exposure” but could find no records to support her claims. Moll was incensed at the suggestion by hospital administrators that she contracted the disease “in the community” and not at UC Davis.
“I did everything I was told to do and instructed to do,” she said. “So that (to claim) I got it ‘from the community,’ unless it’s in the wind, I got it at work. That’s insulting. By saying that, you’re implying even healthcare workers are ignoring the recommendations.”
Moll’s experience illustrates an increasingly tense situation between health care workers and hospital administrators as the coronavirus pandemic has deepened. Administrators insist their employees most likely aren’t getting infected on the job, even though those same workers are dealing with COVID-19 patients on a daily basis and, as some contend, without proper protection.
Advocates for workers say there’s a reason why hospitals are generally reluctant to acknowledge infections are occurring on their properties: money.
If workers can’t prove they contracted COVID-19 at work, the hospitals can avoid paying workers’ compensation benefits, which are generally limited to medical expenses and reimbursement of lost pay.
Medical workers are left with few options. Under California law, they can’t sue their employers but instead must file the workers comp claim if they believe they were injured or sickened on the job. But experts say proving that claim could be difficult when the employee has been struck by a rapidly spreading virus as opposed to an obvious workplace accident.
If the coronavirus pandemic spreads to large numbers of hospital workers, as it has in Italy and other places, hospitals would be facing a major liability.
“Workers’ comp exposure is a real issue for them because of the costs involved,” said Greg Cattermole, a San Mateo workers’ comp lawyer.
Cattermole said he was disturbed to see a hospital “put the burden on the workers to prove where, how and when they contracted the disease. ... I hope the Legislature does something or the governor does something to protect these people.”
At UC Davis, the health system’s CEO has said that some employees had tested positive for COVID-19 and “many” employees would call in sick in the coming weeks. But he insisted that any of those positive cases in the future were “very likely community-acquired infections” and not the result of working with sick people.
Employees at other hospitals said similar policies were in place where they worked.
“They’re assuming that if any nurse becomes positive, there’s no way to verify it, and it’s community-acquired,” Renee Altaffer, a trauma and intensive care nurse at Sutter Roseville Medical Center, said Wednesday morning in an interview with The Bee.
Altaffer and some of her fellow nurses in their union held a candlelight vigil Wednesday night at the hospital to protest what they consider unsafe working conditions.
However, a day after The Bee inquired about Sutter’s policies, hospital CEO Brian Alexander sent an email to staff signaling management was willing to acknowledge the possibility of staff members getting infected at work.
“Now that the virus has become so widespread in our communities, the chance of any of us becoming infected outside the workplace continues to rise,” Alexander wrote in the memo obtained by The Bee.
“Nevertheless, in the unfortunate case an employee tests positive for COVID-19 and submits a workers’ compensation claim, we will presume employees who work in clinical environments acquired the virus from a work-related exposure for compensation purposes unless definitively shown otherwise.”
The Sacramento region’s three largest hospital systems would not answer how many healthcare workers had been exposed to, or tested positive for COVID-19. They insisted they were taking steps to prevent staff members and patients from becoming infected.
Edwin Garcia, a spokesman for UC Davis Health, said decisions aren’t being driven by concerns about lawsuits or workers’ comp.
“If there is an infection acquired within the hospital, we want to know about it, as soon as possible, to reduce, or ideally, eliminate, the possibility of future spread,” Garcia, the UC Davis Health spokesman, said in an email Wednesday. “Any employee’s claim of potential at-work exposure will be quickly and appropriately reviewed.”
He added: “Our decisions are informed by clinical evidence and delivering patient care — not finance.”
Garcia said the hospital has “dedicated, full-time teams that are committed to infection prevention and keeping our employees safe. As the region’s largest hospital, we regularly treat patients with serious infectious diseases so we have well-established procedures and equipment to keep our employees safe, regardless of COVID-19.”
Sutter Health spokeswoman Liz Madison told The Bee this week that it would start “mandatory temperature screenings for all clinicians, staff, contractors and vendors upon entry to all our facilities.”
The hospital is also separating COVID-19 patients from other patients and prioritizing protective equipment “for higher-risk care environments” in an effort to slow the spread of the disease inside the hospital.
“We don’t have any information to provide at this time,” Kaiser Permanente Northern California spokeswoman Chyresse Hill said Wednesday in an emailed response to a list of more than a dozen questions from The Bee.
The California Department of Public Health this week stopped reporting how many health care workers were testing positive for COVID-19, angering the California Nurses Association. The department told the San Francisco Chronicle it changed its reporting criteria to “better focus public health resources on the changing needs of California communities.”
At least 73 had tested positive by Friday.
Yet employees across health systems have told The Bee that managers have tightly guarded masks and other equipment or told staff not to wear masks, except in specific situations. (The association that accredits hospitals on Tuesday said workers should be allowed to wear their own masks as they deem necessary.)
Hospitals have administered relatively few COVID-19 tests, including many that take more than a week to get results from, making it impossible to know who is sick and whether employees were exposed.
Ill workers, like Moll, as they’ve recovered, have had to navigate a confusing maze of human resources departments and shifting hospital policies surrounding COVID-19.
Meanwhile, healthcare workers say their worries about not having enough equipment to protect them from the new coronavirus on the job are being met with skepticism by their supervisors.
“Mandatory masks for everyone in the hospital!” Dr. Thomas Loehfelm, a radiologist at UC Davis Health said Tuesday on Twitter as he shared the news that more than 500 healthcare workers in Massachusetts have tested positive for COVID-19. “Don’t let this happen @UCDavisHealth, and don’t blame it on community spread.”
Health care workers have also been asking unions to negotiate another death benefit insurance policy in case they die after contracting COVID-19, said Denise Duncan, a nurse and president of United Nurses Associations of California/Union of Health Care Professionals. While some hospitals — including UC Davis Medical Center — have created a new type of paid leave to deal with coronavirus-related absence, others have not.
Nurses are worried about running out of sick time.
“Our members are afraid of taking the virus home to their families,” Duncan said. “... All are concerned about the delay in screening, of failure to test patients and the slow turnaround of tests and finally the lack of approved treatments.”
Push-back from hospitals and other employers about where a health care worker acquired an illness also would be a major sticking point in coming months and years, said Henry A. Garrido, vice president for the American Federation of State, County and Municipal Employees, a trade union representing municipal employees, first responders and hospital employees.
On a call with reporters Tuesday, Garrido, who represents workers in New York City, compared the current situation to the challenges workers faced in getting compensated after getting sick or dying following the 9/11 terrorist attacks.
He said seven members of his union have already died from the disease.
“For people to be told, ‘You are a nurse or a first-responder and you are dealing with this and you’re perfectly healthy when you’re in your 30s or your 40s and you passed away, and you probably got it in your neighborhood,’ is an insult to all the workers who are putting their lives on the line,” Garrido said.
Across the country, doctors and nurses have faced threats and retaliation from hospital administrators for speaking out publicly about the lack of protective equipment. A Washington state emergency room doctor, Dr. Ming Lin, wrote on Facebook that he was fired Friday from PeaceHealth St. Joseph Medical Center in Bellingham, Wash., after expressing concerns about protective gear and testing.
“The idea that this person would be fired for complaining is really, truly unfortunate,” said Stephen Shortell, a professor of health policy and management at UC Berkeley and former dean of the public health program. As tensions rise and more people become sick and speak out, chasms between management and front-line workers will be on full display.
“People get frustrated,” Shortell said. “It’s going to make very visible the leadership of our nation’s hospitals and health care system.”
The tactics hospital administrators are using come from a long-used playbook in how executives manage concerns around infection outbreaks, experts said. Officials want to keep people coming in the door and not give the impression that patients might get sick if they do. They also need employees to continue coming to work despite the risks.
“It’s sort of like, ‘There’s danger out there. And we’re dangerous, but we take precautions,’ ” said Art Caplan, director of the medical ethics program at New York University’s Langone Medical Center
In the back of a hospital administrator’s mind, experts said, is also the risk of reporting a hospital-acquired infection or outbreak that could jeopardize funding and open them up to drawn-out lawsuits.
But Caplan said those liability risks are minimal. Hospitals are operating in uncharted territory when it comes to treating a surge of patients in the middle of a global pandemic. And it would be difficult for a plaintiff’s lawyer to prove an accepted “standard of care” was violated if someone believed they were negligently exposed to the virus inside a medical center.
Nurses and doctors have been receiving a number of directives from hospital administrators based on rapidly evolving guidelines from the U.S. Centers for Disease Control and Prevention outlining how to protect patients and staff from infection.
“I know American litigation is nuts, but a lot of these lawsuits, it would be impossible to prove where you got infected,” Caplan said. “When you’re in a pandemic emergency, it’s hard to say what the standard of care is.”
Nevertheless, Michael Sullivan, a workers’ comp lawyer in El Segundo, said health care workers might be able to file claims on the grounds that their workplace is inherently riskier. And if the worker dies of COVID-19, his or her family could file a workers’ comp claim for death benefits. A successful claim would be worth $250,000 or more, depending on the number of dependents.
“Things are going to come to a head when people die,” he said. “I anticipate a great deal of litigation. Enough money, there’s going to be a fight.”
For weeks, Moll said, she had drawn on her nearly three decades of nursing experience to protect herself at the UC Davis Medical Center emergency room, where she was working that day in mid-March. She took extra precautions on her days off and avoided any human interaction outside the home she shares with her 11-year-old daughter and husband. She said she went for one walk in a park, but didn’t interact with anyone.
Moll, 48, believes she was infected while she and her colleagues were restraining the confused and combative man.
Moll originally asked The Sacramento Bee not to identify her when she was quoted in a March 24 story that described how David Lubarsky, CEO of UC Davis Health, notified staff in an email of “the first of what will be many” infections among workers at the healthcare system.
Moll said at the time she feared retaliation. But in the days since, she said she wanted to share her story publicly so that people could know the profound risk frontline healthcare workers face from not having adequate equipment to protect themselves from the infection.
She said she also was extremely frustrated the hospital was downplaying the risk to workers like herself by claiming they almost certainly caught the infection outside of work.
She said doctors and nurses know better than most how to take “social distancing” precautions while out in the community. She said she remains deeply troubled by the risks to them.
“We all went into this profession for the desire to help people. I do not feel that it was a mistake to have entered into emergency room nursing. But I will admit that I am very scared,” Moll said this week. “The uncertainty is difficult. If I have to put it in nursing terms on a scale of one to 10, 10 being very concerned, I would say it’s a 10.”
Moll said Wednesday no one from hospital administration has called to discuss the incident with her.
In his statement, Garcia, the UC Davis Health spokesman, said the hospital’s infection prevention team looked into the case as a possible exposure.
“While UC Davis Health cares for the most challenging and medically complex patients in the region, there were no COVID-19 patients in the UC Davis Medical Center’s Emergency Department on the date provided who met the description provided by The Bee,” he said. “Additionally, no reports were filed about a combative patient on that date.”
He said employees are never “denied access to the necessary protective equipment to do their work.”
“Supplies of protective equipment are immediately accessible whenever needed, but are kept locked up to protect against theft of these important supplies,” he said.
When it comes to legal claims, COVID-19 in the workplace is comparable to what often unfolds in hospitals: It’s hard to prove where or how someone got sick.
“Proving that you got it at work, that’s going to be the challenge … given that it is publicly contractible right now,” said Elizabeth Stallard, an employment-law expert at the DowneyBrand law firm in Sacramento. “It is generally in the community.”
Hollie Rutkowski, an attorney with the Compensation Law Center, a Sacramento law firm that represents injured workers, agreed. Rutkowski, who worked as a nurse at UC Davis Medical Center before becoming a lawyer, said the UC system is known for fighting workers’ comp claims.
“They litigate, they are very tough …. The UC regents, they would much rather throw money at a defense attorney who will litigate to the ends of the earth,” Rutkowski said.
Legal experts said workers’ comp is, with the exception of extreme cases, an injured workers’ only legal recourse; they generally can’t sue their employer.
Washington state, the first state to get hit hard by the coronavirus, has said it will allow first responders and health care workers to collect workers’ comp if they are quarantined after COVID-19 exposure on the job.
“We should have their backs, it’s the right thing to do,” Gov. Jay Inslee said March 5.
On March 19, the California Labor Federation asked Newsom to effectively guarantee workers’ comp benefits for anyone who contracts the coronavirus and had been deemed an “essential” worker under his statewide “stay at home” order.
“Workers on the frontlines of the COVID-19 pandemic put their lives at risk just doing their jobs. If they are infected with COVID-19, the workers’ compensation system must quickly provide medical and indemnity benefits – such workers should not have to fight denials and delays while fighting for their lives,” the federation said in a letter to Newsom.
Until now, the courts have made it hard for California workers felled by disease to file workers’ comp claims, compared to those involved in workplace accidents.
In 1998 the state Supreme Court turned down the widow of a Long Beach Community College District worker who suffered cardiac arrest while attending a work conference and got a fatal bacterial infection while in the hospital. The court said there was no proof the man “was exposed to a special risk of infection or other medical injury because of his employment.”
In most instances, Rutkowski said she probably wouldn’t bother filing a claim. If the worker recovers fairly quickly, the workers’ comp benefits wouldn’t amount to much; he or she would only be eligible for two-thirds of the lost wages, and that only kicks in after the worker misses more than three days.
“Why open a hornet’s nest like that and have the UC regents come down on you? I wouldn’t even bother filing it.”
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