New York Governor Andrew Cuomo made a now-notorious decision to concentrate COVID patients in nursing homes. This produced America’s worst losses of the pandemic. I worked as a paramedic in New York City throughout, and have had conversations with a number of senior clinicians about it all.

For context, remember that keeping patients from the hospitals (and quickly moving them out) was the crucial decision of the pandemic. It meant the difference in our healthcare systems’ survival. To live, we depended on “flattening the curve,” which meant managing patients so that large numbers would not drown our capabilities. Everyone had to adapt, overcome, and improvise.

And everyone who did had, high on our risk-radars, fear of exactly what is happening now: “we are managing an extreme situation. But will the lawyers (or political enemies) savage us for what we do when the dangers are over and forgotten?” We had a form of liability relief, but nobody trusted how it would work. Spend your righteous rage considering the fact that frontline pandemic fighters feared contracting a deadly and debilitating disease, but feared our own legal system only a little less. Governor Cuomo’s main motivation for concealing his decision seems to be just as much a fear of Trump’s Justice Department (he should still face a criminal investigation over his coverup).

About those legal fears: American medicine has liability defense baked into its cake. One stroke of the Governor’s pen cannot unbake the needed ingredients from the counter-productive ones. For an example, take a teen with a headache: 99.99 percent of the time, the headache is a nuisance, like dehydration. One of the things that makes American medicine twice as expensive as the next-most expensive system, is the latter will tell that patient to take a Tylenol, go and drink some water, and come back if the complaint remain, but any New York City Emergency Department will defend itself from that 0.01% risk (except during the pandemic), by ordering a battery of expensive tests (and fire the clinicians that won’t).

That is bad enough. What is worse is that the ecosystem of liability lawyers remains, and it moves on to the risks left unchecked. Medical policies and procedures evolve not out of medical reason (“go drink a glass of water”), but out of the arms-race of liability defense. This creates a ratchet of defensive procedures, and the ratchet never unwinds. Procedures are not studied for medical utility (or cost), and can’t be, because they have to defend against legal challenges rather than medical ones. Nobody studies their utility in normal times, much less during a total system meltdown. Take my word for it, over my 25(++) years in emergency medicine, I saw this ratchet turn to where I have to do truly bizarre things to defend myself (and my institution).

All of this is groundwork to understand the conversation I had with a senior nurse: “Why can’t we send the less-sick nursing home patients to the empty hotels?” I asked (actually, we did just that, when we evacuated our homeless shelter residents to hotels across the tri-state area). “Stop making sense” (she knows me). “Hotel beds don’t have rails,” “If you were in a nursing home, would you rather risk a fall out of bed, or exposure to COVID?” I asked. I told her about how when I walk into a nursing home, all done up in my protective gear, the residents are rightly terrified. “The beds could go on the floor,” she said, scales falling from her eyes, as she explored the possibilities of common sense over procedure. This counterfactual can go on and on: what about isolating those patients in the empty cruise ships, to isolate them from the disease (or in the disease)?

Lots of healthcare providers had lots of good ideas on what could be done to separate the COVID patients from the terribly exposed nursing homes ones, but our system has evolved to be liable for adaptation and creativity. We have no way of knowing how many actually NEED a bed with a side rail. It is pretty obvious, to this scribbler, that sending at-risk elderly to a facility suffering a COVID outbreak is way more neglectful than sending them to a hotel bed on the floor. There is no way to know, though it’s reasonable to speculate, that we lost more nursing home patients to COVID than have been spared by a bed rail.The argument is not that we should have had enough rooms in compliance with all regulations (we can’t possibly afford that). The argument is that we cannot judge regulations for utility, using common sense in a crisis, and adapt. This is the deadly dilemma created by just ONE of our regulations. It is inconceivable that anyone knows the actual medical utility of all of them.

Besides, my argument about our regulated way of thinking is, itself, a huge component of the problem. As Daffy Duck would say: it’s pronoun trouble: “We” should not be resolving the dilemma. “They” (the patients, and their families) should be; the people who are actually exposed to the risk. Getting the patient’s informed consent is integral to all medical procedures. Yet we did not ask for consent on a life-and-death decision on the risks posed by the pandemic of the century. They might have been offered a one-off chance to waive liability, say. The same way their doctors were granted immunity (legal waivers stored like critical medical supplies: that might be my favorite metaphor of the scandal).

The governor’s disaster of un-adaptability is a microcosm of our healthcare systems’ susceptibility to non-clinical legal risks. The medical decisions of how we would adapt were bottlenecked not only through a legal authority, which would be bad enough, but through one who is, above all, a political animal (ironic, how the whole Democrat world, and their media courtiers, says the same of POTUS Trump). Change needs to happen at the intersection of medical necessity, and liability, and it needs to be made by experts in medicine. They would be incentivized (watch the blog) by the best clinical practices, to mitigate the damage the next time we face such a crisis.

• About the Author

About Eugene Darden Nicholas

Eugene Darden (Ed) Nicholas is from Flushing Queens, where he grew up sheltered from the hard world, learning the true things after graduating college and becoming a paramedic in Harlem. School continues to inform and entertain in all its true, Shakespearean glory. It's a lot of fun, really. In that career, dozens of people walk the earth now who would not be otherwise. (The number depends on how literally or figuratively you choose to add). He added a beloved wife to his little family, which is healthy. He is also well blessed in friends and colleagues.