COVID-19 Resources for Lawyers
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Harry Nelson

Harry Nelson is founder and managing partner of Nelson Hardiman, a healthcare specialty law firm, and author of the...

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J. Craig Williams

J. Craig Williams is admitted to practice law in Iowa, California, Massachusetts, and Washington. Before attending law school, his...

Episode Notes

On October 2nd, 2020 President Trump announced that he and his wife, Melania Trump tested positive for the coronavirus. After disclosing his positive test, President Trump was taken to Walter Reed hospital, and questions and rumors circulated about his condition.

In press conferences from Walter Reed, medical professionals cited HIPAA privacy laws for not sharing specific details regarding the president’s health, leaving the American public guessing. After a controversial car ride around Walter Reed by the president, questions remained about the exposure to COVID-19 of those closest to him. On October 5th, the president was released from Walter Reed, when he gave a thumbs up before walking inside the White House and took off his mask. Now back at the White House, will this experience result in any change?

On Lawyer 2 Lawyer, host Craig Williams is joined by Harry Nelson, founder and managing partner of Nelson Hardiman, the largest boutique healthcare law firm in Los Angeles, to discuss the health of the president and whether it is a national security issue to not know his condition; to take a look at White House staff members and others testing positive; and to consider the duty of all employers to keep employees safe, the controversy over wearing masks, and the impact of the president’s words regarding the virus on the American public.

Special thanks to our sponsors, Blue J Legal and LEX Reception.

Transcript

Lawyer2Lawyer

The President, COVID-19, and Impact on the American Public

10/16/2020

 

Harry Nelson:  I think we’re kind of in the very first inning of a long story that’s going to unfold about what we know and we learned and what we do about all of these impacts of COVID-19.

 

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Intro:  Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams bringing you the latest legal news and observations with the leading experts in the legal profession.  You’re listening to Legal Talk Network.

 

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  1. Craig Williams: And welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams coming to you from Southern California.  I wrote a legal blog named “May it Please the Court” and have two books out titled, “How to Get Sued in the Sled.”  Before we introduce today’s topic, we’d like to take this time to thank our sponsors Lex Reception and Blue Jay Legal.  Lex Reception is a close-knit team of virtual receptionists dedicated to professionalism, warmth and a 24/7 availability for law firms and attorneys.  Blue Jay Legal’s AI powered foresight platforms accurately predict court outcomes and accelerate case research by using factors instead of keywords.  You can learn more at bluejlegal.com.  That’s blue, the letter J, legal.com.  bluejlegal.com.

 

On October 2, 2020, President Trump announced that he and his wife, Melania Trump tested positive for the coronavirus.  And most recently, in the news, Baron, the son of President Trump and Melania Trump has also tested positive.  Well, after disclosing his positive test, President Trump was taken to Walter Reed Hospital.  Questions and rumors circulated about his condition following that.  But in the statement, White House physician, Dr. Sean Conley said, “I’m happy to report that the President is doing very well.  He is not requiring any supplemental oxygen, but in consultation with specialists we have elected to initiate remdesivir therapy.”

 

Well, in press conferences from Walter Reed Medical, professionals cited HIPAA privacy laws for not sharing specific details about the President’s health leaving much of America guessing about his conditions.  After a controversial car ride around Walter Reed by the President, questions remained about the exposure of COVID to those closest to him.  On October 5th, the President was released from Walter Reed and he gave a thumbs up before walking inside the White House and taking off his mask.

 

Well now, back at the White House, were those experience result in any change.  To date, approximately 215,000 Americans have died from coronavirus.  Today on Lawyer 2 Lawyer, we’re going to be discussing the health of the President.  We’ll discuss whether it’s a national security issue not to know his condition.  Take a look at White House staff members and others who have tested positive.  The duty of employers to keep employees safe.  The controversy regarding masks.  The impact of the President’s words regarding the virus on the American public.

 

To do that, we’ve got a great guest.  His name is Harry Nelson.  He’s the founder and managing partner of Nelson Hardiman, the largest boutique healthcare law firm in Los Angeles.  Harry is also the author of two books from Obamacare to Trumpcare why you should care in the United States of opioids.  Welcome to the show, Harry.

 

Harry Nelson:  Great to be with you.  Thanks for having me today.

 

  1. Craig Williams: Well, Harry, let’s get a little bit of background. I mean, in the past, we’ve heard about President’s health, we get an annual report about physical checkups.  But do we really get the true information about the American President?

 

Harry Nelson:  It’s a good question.  I mean, I think this administration has certainly been raising questions even before now about how much transparency we’re getting and how much information we’re getting about the President’s true health condition.  We certainly have historical examples of presidents who were operating with severe health issues that we didn’t know about in the pre-modern era.  But this White House has certainly reinvigorated that issue.

 

  1. Craig Williams: Well, I mean, there was — if we go back in time, very few people know about FDR’s condition.

 

Harry Nelson:  Right, exactly.  That was the one that would come most in mind, right?  We know that for his last term, that certainly, he had a severe stroke.  And that Eleanor Roosevelt was a significant player in making decisions.  So, I think, before the television cameras were there, and before the transparency and modern media were around, there probably almost undoubtedly were presidents who had more severe and serious health issues.  But the modern era doesn’t leave a lot of room to hide what’s really going on with the health of the President.

 

  1. Craig Williams: Right. Well, and now, we’ve heard that the President has gotten COVID and presumably within days, recovered from it.  What’s going on there?

 

Harry Nelson:  Yeah.  It’s been a strange sequence, right?  We definitely seemed to have gotten a part of the story, but some really key missing pieces, right?  We learned of the President’s COVID diagnosis without ever getting a clear answer on the actual time that he knew.

 

00:05:04

 

There have been suggestions from some sources that the President may have been positive at the time of the original debate with Vice President Biden, and a whole series of other questions about other aspects.  Did he did he not need oxygen on the day before he went to the hospital?  What is he still infectious?  There are all kinds of questions on which what we’re seeing is a sort of picking and choosing of what health information to share and what to sort of slide by without actually disclosing.

 

  1. Craig Williams: What have you to say about the super spreader events that the CDC has laid at President Trump’s feet? The Amy Coney Barrett ceremony in the Rose Garden?

 

Harry Nelson:  I think it’s fair to call this a super spreader event.  We have a specific definition of an event in terms of the number of contagion cases that come out of an event.  I mean, I think, it’s problematic and it’s clear that the White House was not taking as serious as possible on attitude both in advance of the event or after the fact.  I mean, the most sort of jarring thing for me to see was that the Senate Majority Leader, Mitch McConnell was actually explaining that he wasn’t coming to the White House because he was uncomfortable with the White House procedure.  And I thought that was really telling because here’s somebody who’s clearly an ally of the administration who’s distancing themselves from the way that COVID is being handled in the White House.

 

And so, I think it’s troubling and I hope that it will prompt some kind of change in how the administration begins to act in terms of prevention and in terms of follow-up and contact tracing and in all other respects.

 

  1. Craig Williams: Well, what kind of liability flows from that? I mean, if I were to sit in my first year of torts class from law school, I might be convinced that there were a few torts committed.

 

Harry Nelson:  It’s a great question.  There’s kind of a lot of unanswered questions around what kind of exposure to risk with respect to COVID, it’s going to lead to liability.  Though the area where I think we have the most clarity is in places like the workplace where there is a duty to protect the safety of workers under Federal and in many cases, State Law.  Under laws like OSHA, for example.  So, I think that for the White House staff and the people who were there, because their job required them to be there, I think there is a significant risk in potentially establishing an unsafe workplace and using those standards as the basis for some liability claims.

 

I think for people who are showing up as guests, you’ll remember from law school that the duty owed to you by a landowner in general is controlled by your status.  Were you invited on for a business purpose?  Are you just there as a guest for other purposes?  And then, we have to remember that the Federal Government is protected by all kinds of tort protection laws.  The government has to actually allow you to sue it.  So, I don’t think we’re going to be seeing lawsuits come out of the White House, the Rose Garden event, or these other events.  But I’m sure we’ll see some of these cases make their way to the court.

 

  1. Craig Williams: You would presume at some point that there might be workers’ compensation coverage for some of those employees?

 

Harry Nelson:  It’s a big fight, right?  We’ve already heard the President and a number of members of congress talking about passing laws to avoid workers’ compensation risks.  And I think that’s something that we’re going to see coming up in the very near future.

 

  1. Craig Williams: How do you strike the balance between President Trump’s HIPAA rights and the public’s need to know and whether there is a national security consideration in that?

 

Harry Nelson:  You know, HIPAA does not get to the issue of when there’s an overriding public interest.  There is a public health exception that allows HIPAA to be overridden by public health authorities.  But HIPAA does not weigh in on how much of a right we have to know about our elected leaders and people in power.  So, there is some degree of choice.

 

What seems striking about the President’s situation and Dr Conley’s comments, for example, is that the White House was trying to pick and choose to put out the statements that it thought would ensure some confidence and not panic people, but was also trying to keep things off the table.  And HIPAA also doesn’t work that way.  HIPAA basically allows for patients to choose to share their information.  And once you’re going to start to share your information, it doesn’t — the kind of suggestion that Dr. Conley was making that some information is okay to share, but other information is protected by HIPAA.  It seemed very self-serving and inconsistent with HIPAA.

 

  1. Craig Williams: What do you think about these non-disclosure agreements that Trump attempted to get people at Walter Reed to sign? The government employees, can they even sign an NDA?

 

Harry Nelson:  Yeah, it’s very strange.  It’s very non-standard and I think it’s troubling.

 

00:10:00

 

Look, we have a long history of hospital staff and even medical professionals acting inappropriately.  So, I understand where it came from.  I’ve been involved personally in a whole bunch of lawsuits where celebrities went into particular health systems and people, doctors and hospital staff looked at the records and shared it with us weekly or TMZ or some other source that would pay money, or just shared it out of curiosity.  So, I totally understand the desire not to have people sign these agreements.  But our system is set up to actually include severe penalties and to make sure that people who engage in that kind of misdemeanor are dealt with appropriately.  It seems really odd to me to expect people to sign NDAs as they would in other contexts.  That’s just not part of the healthcare landscape.

 

  1. Craig Williams: Well, it seemed apparently that some doctors refused to sign those NDAs and then, they were prohibited from treating President Trump.

 

Harry Nelson:  Yeah. I mean, it wasn’t — no laws were violated in that process.  It’s just, it definitely sort of gives some context to how to think about how this administration is trying to shape the narrative and limit people from doing anything that might compromise what the story that they want to tell is.

 

  1. Craig Williams: Right. Well, here we are with the White House disclosing that he’s tested positive, then we see him off to Walter Reed and then he gets released from Walter Reed, but there is no indication from anyone at that point that he tested negative.  Is there a concern about that?

 

Harry Nelson:  Yeah, I think that’s a really big question.  And it also seems that along the way, that when they — I believe there was a statement that they were relying upon these rapid tests that have a high degree of error in making determinations of level of contagion.  It should be troubling to anybody who’s taking this seriously that the White House was so non-transparent about what exactly the President’s status was and how there could be so much confidence without knowing what kind of viral load he still might have been shedding.  Like none of it gave me any confidence and I don’t think that anyone has a basis to feel in any way assured by the statements coming out of Dr Conley or anybody else or the White House.

 

  1. Craig Williams: Right. Well, and here we have the White House pretty flagrantly disregarding the CDC’s instructions to wear masks.  A whole host of people to some 30, 35 people at the last count around the White House have tested positive for it.  Some people are saying, “Is this karma.  This is what you get,” but on the other hand, there is another group saying that this is, “You can’t protect your own family.  You can’t protect the White House; how can we expect you to protect the country?”  What’s the message that’s being sent here?

 

Harry Nelson:  Look, I think it’s a fair question.  I think, we’re in a very polarized time so people are going to read this really differently.  I think a lot of people certainly on the anti-Trump side were, if not taking some level of schadenfreude were sort of heartened to see that the President’s casual attitude towards this whole issue was actually coming back to bite him.  But I think that the bottom line is, that this should concerning to everybody and it should be a lesson.  I hope that this is going to ultimately be a positive model for why we need to be even more careful and more forthright in all of our interactions.  I think this is going to be a moral lesson for political leaders going forward just because it’s been such a troubling story that has taken our attention off of other issues that we need to be focused on.

 

  1. Craig Williams: Right, certainly. Well, before we move on to our next segment, we’re going to take a quick break to hear a message from our sponsors.  We’ll be right back.

 

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  1. Craig Williams: And welcome back to Lawyer 2 Lawyer. I’m Craig Williams and with us today is Harry Nelson.  He’s the founder and managing partner of Nelson Hardiman, the largest boutique healthcare law firm in Los Angeles.  And before the break, we’ve been talking about President Trump’s mask policy and the consistencies with the CDC instructions.

 

00:15:06

 

And also, the ramifications to the general public.  And there have been instances now where people have gone to work, and gone to parties, and they have kids have gone back to school knowing that they tested positive.  What are the consequences of that and what can be done to curb that behavior?

 

Harry Nelson:  You know, we have a lot of tools at our disposal.  First of all, we talked a little bit in the first segment about what the liability risks are, but the one thing we have that — the tool that’s already in place is under the various emergency acts that are out there that give states authority to — and local governments authority.  It’s certainly possible to put penalties on people to impose fines.  We’ve been seeing in New York State in particular, a really aggressive approach of finding people who are behaving inappropriately.  We’ve been seeing that more oriented towards events and people who are just organizing large gatherings in defiance of public health orders.

 

And we’ve been seeing here in Los Angeles, I’ve been out on the street and I’ve seen police giving out tickets to people.  One of my own sons thankfully was in a — he was in a public park out near our home and he was wearing a mask, but he was with a larger group and a couple of the kids weren’t wearing masks and those kids came home with tickets.  So, I think that those are the tools we should be using, right?  I think that the public needs to — we need carrots and we need sticks to motivate people to do the right things.  Those are the tools that I think are going to really solve the problem.  I’m not a big believer that we’re going to see a huge burst of personal liability that people are going to be bringing lawsuits, but that’s just my take.

 

  1. Craig Williams: Right. Well, we’ve also seen this happen before some hundred years ago, the 1918 pandemic.  Any lessons we can draw from that that we aren’t really following now?

 

Harry Nelson:  You know, it’s so interesting, I’m finding personally that I didn’t know nearly as much as I should have about the 1918 pandemic.  It was particularly strange for me if I found out that my grandfather for whom I’m named died very young of a weak heart.  And when I heard about it in the family, it never connected it to the to the Spanish flu until we’ve talked about scarlet fever, and it turns out that that was a — he and his sister went their whole lives with health effects and were some of the millions of people who did so as a result of the Spanish flu.

 

And given our current healthcare system, and given the immense amount of learning that we’re going to be doing about COVID-19 in the next few years, I think we’re going to see that there is going to be the same kind of a long-term health impact.  And right now, it’s coming up in the form of all kinds of stories that different people are having with COVID of the lasting impact and we’re trying to understand what it is.

 

So, I think we’re going to see a whole emergence of a new public health attention to kind of lingering consequences of this virus.  And I also think we’re going to see — I think some of the steps that we’re taking now in terms of infection control, and attention to hygiene, our attention to air quality and sanitation are really going to change how we work, how we live and how we operate in our public spaces.  So, I think we’re kind of in the very first inning of a long story that’s going to unfold about what we know and what we learn and what we do about all of these impacts of COVID-19.

 

J.Craig Williams:  Well, Harry, on Twitter, the President claimed, “Don’t be afraid of COVID.  Don’t let it dominate your life.”  Nick Cordero’s wife the Broadway actor who lost his life to COVID and got on social media and took issue with that.  And it appears that it has affected a lot of people.  How does the President reconcile what he is saying with what’s happening?

 

Harry Nelson:  Personally, I think this is a tricky issue.  I think that it was a little bizarre to see the President supposedly struggling significantly, needing oxygen, and then, really minimizing COVID.  So, I think that to have him then make this rosy, “Don’t worry, but don’t be afraid of COVID, don’t let fear dominate your life,” statement, that was a little bit troubling.  On the other hand, I do think that — my own observation is, people are living on a continuum of reactions to COVID.  And on one side, you have people saying, “This is a hoax,” or “This is nothing.  This is no different than the flu,” and on the other side of the continuum, you have people who are really living in very kind of shutdown ways which are creating other risks, right?  We’re seeing unprecedented suicide risks and severe depression and anxiety.  And I personally think that we need to find messaging that somewhere in the middle that’s calibrated to the different risks that different people are facing that is giving people some way to have a positive mindset even while being very careful.  So, I think the President made a big mistake in terms of being so casual and so flippant.  And I think his campaign advisors from what I read were very unhappy with his failure to kind of take advantage of the empathy that he might have found in that moment.

 

00:20:09

But at the same time, I do think that the message of people trying to find a way to live with this would be a positive thing.  Finding that balance of being careful, but not being completely paralyzed is, I think, important to the health of America.

 

  1. Craig Williams: Well, President Trump also said that he has a complete and total sign off from White House doctors that he can’t get it, that he’s can’t give it. And Twitter, at least, one of the social media entities flagged Trump’s tweet.  What are your thoughts about that?

 

Harry Nelson:  I think we’re not getting enough clarity and enough transparency on what the data show.  And we certainly — everything I’ve been reading about COVID and I’ve been following the CDC and other organizations’ data suggests that there’s a high variance of how quickly symptoms appear.  Obviously, we know that some people are asymptomatic and then there’s also a lot of variance in how quickly it goes away, and when people are no longer shedding live virus.  And we have a strange phenomenon showing up in the workforce, in the workplace of people continuing to test positive for weeks and weeks after they are no longer shedding virus.  But we just don’t know enough.  So, for these very rosy statements to follow so quickly when they clearly serve the President’s goal to be back on the campaign trail and out having events without any kind of sharing of data to back up exactly how they know these facts, it gives me a pause.

 

  1. Craig Williams: Well, you said at the beginning or in the earlier in the beginning of the segment, you had hoped that people would learn from the experience. It doesn’t look like that’s happened.

 

Harry Nelson:  Look, I know.  I don’t know if this President is going to make significant changes.  He seems to be somebody who doubles down on everything and doesn’t — he’s not somebody who easily acknowledges mistakes and pivots and conciliate.  He’s not somebody who’s quick to be conciliatory.  But again, I do think other — I think we’re seeing from other political leaders, particularly other republican leaders, a really different message.  And I think that there’s going to be a lot of hand-wringing within the republican party and in the national leadership to really figure out what the right message is.  And I think we’re already seeing a lot of signs that it’s not going to be the message that this President is making.  So, in many ways, I think he’s going to be the negative example for many people.  But we’ll know a lot more in the next couple weeks.

 

  1. Craig Williams: Right. And please turn that on its head or at least turn it on the other side.  As society, where do we turn for trustworthy information?  I mean, the administration has gone so far as to attack its own CDC doctors.  President Trump has gone on and had a specialized treatment that doesn’t appear to be available to very many other people.  Where do we turn?  Who do we look to?  And what should we be doing?

 

Harry Nelson:  It’s a tougher and tougher question.  I’ll tell you, personally, I have started a practice and my wife has also sort of started a practice of every time we read a story or we’re watching television coverage, we kind of tip — we turn over to see what the other side is saying, right?  So, if we’re going to watch CNN, we also want to know how the story is being covered by Fox.  And I think, the more that you are getting information from multiple news sources, it becomes easier to see through where we’re getting excessive or inaccurate messages from one side or the other.  There’s no perfect solution right now, and there’s no one magic bullet.  We’re seeing a lot of delegitimization of one source or another.  And I guess, my biggest message to people would be, when you’re consuming media, we’re living in a time when there’s so much delegitimization that the safest course is to actually try to hear how multiple different publishers of information and content generators are describing the world.  And from that, we get closer to reality and closer to identifying when people are putting an overlay of their own biases on the stories.

 

  1. Craig Williams: It takes a critical mind, doesn’t it?

 

Harry Nelson:  It’s certainly not an easy time to just believe everything you hear or alternatively, there’s just so many people — I meet more and more people who are really locked in ideologically to one side or the other.  It’s becoming a more rare and precious thing to find people who are really trying to approach things critically.  So, I hope that that will come back into fashion.

 

  1. Craig Williams: Let’s hope. Well, Harry, it looks like we’ve just about reached the end of our program. So, I’d like to invite you to share your final thoughts and along with your contact information.

 

Harry Nelson:  I appreciate it.  Well, my contact information, people can find me at — you can reach me directly at [email protected].  My law firm website, I also have a website harrynelson.com where I can be reached and which has information about my books, and some of the media content that I’m putting out.  I would love for people to come check that out.

 

00:24:59

 

I think, for me, the ultimate takeaway from this this whole episode has been that the COVID crisis is really evolving quickly, unexpectedly and is presenting all kinds of new challenges.  And I think that we have to understand that we’re in a really long game.  We’re not going to know the full picture of how this virus transmit, what it does, and how to stop it for some time.  Hopefully, a year from now, we’ll be looking at a vaccine really limiting it, but I still think there will be big questions for years to come.  I just hope that people will be careful to really keep exploring and keep an open mind about whether the data they’re relying on is stable. And I think that hopefully, we’ll be able to take lessons away from some of the pain and suffering that others are having and be able to join together in wishing and praying for the health and recovery of as many people as possible.

 

  1. Craig Williams: Well, thank you, Harry. And I’d like to take this moment to thank Harry Nelson for joining us today.  It was a pleasure having you on the show.

 

Harry Nelson:  Thanks so much.  It was really great to be with you.

 

  1. Craig Williams: Great. And for our listeners, if you’ve liked what you heard today, please rate us on Apple Podcasts or your favorite podcasting app.  You can also visit us at legaltalknetwork.com where you can sign up for our newsletter.  I’m Craig Williams.  Thanks for listening.  Join us next time for another great legal topic.  When you want legal, think Lawyer 2 Lawyer.

 

Outro:  Thanks for listening to Lawyer 2 Lawyer produced by the broadcast professionals at Legal Talk Network.  Subscribe to the RSS feed on legaltalknetwork.com or in iTunes.  The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by Legal Talk Network, its officers, directors, employees, agents, representatives, shareholders and subsidiaries.  None of the content should be considered legal advice.  As always, consult a lawyer.

 

00:27:10

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Episode Details
Published: October 16, 2020
Podcast: Lawyer 2 Lawyer
Category: COVID-19 , Legal News
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Lawyer 2 Lawyer
Lawyer 2 Lawyer

Lawyer 2 Lawyer is a legal affairs podcast covering contemporary and relevant issues in the news with a legal perspective.

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