For weeks, hospital workers in the Kansas City area had been warning that the lack of adequate personal protective equipment was putting them at risk when treating COVID-19 patients.
This week, one of those workers, Celia Yap Banago, a registered nurse who had worked at Research Medical Center for more than 40 years, died after caring for a COVID-19 patient, according to the National Nurses United union. Ms. Banago died on Tuesday evening. She was scheduled to retire next week.
Ms. Banago treated a patient in late March who was later found to have COVID-19. According to a co-worker, she treated the patient without N95 masks or any of the specialized protective equipment typically used when treating COVID-19 patients in intensive care units and other facilities.
Since mid-March, health care workers in the area have raised alarms about short supplies of personal protective equipment, such as masks, gowns and face shields, and many hospitals in the Kansas City area have acknowledged taking unusual steps to conserve protective supplies that are meant to be disposable.
In recent statements, a spokesperson for HCA Midwest Health, which operates Research Medical Center, wrote that HCA Midwest Health was conserving equipment to prevent shortages, and denied that the hospital lacked needed safety equipment.
It did not go unnoticed last month that Missouri Governor Mike Parson‘s emergency order enacting new workers’ compensation regulation 8 CSR 50-5.005 notably excluded health care workers like Ms. Banago from the categories of workers presumed to be protected by Missouri’s Workers’ Compensation Law when they contract the Coronavirus. Parson’s motives in protecting some first responders but not others on the front line of fighting the COVID19 pandemic remain unclear. What also remains unclear is the ability of any of Ms. Banago’s surviving dependents to obtain workers’ comp benefits due to her death, or to obtain any compensation at all.
For several reasons, it is likely that Ms. Banago’s death will be covered by workers’ compensation. First, the basis of all workers’ comp laws it that it is the basic duty of all employers to provide their employees with a safe place to work, and that the failure to do so exposes an employer to WC liability. Second, most employers and their workers’ compensation insurers know that denial of a claim can lead to civil lawsuits and potential punitive damages if the employer’s actions, like those alleged by Ms. Banago’s co-workers, are found to be intentional or worse.
Finally, a 2013 Missouri court of appeals case makes it clear that, despite the widespread presence of the coronavirus throughout the greater Kansas City area, hospital workers like Ms. Banago, may be protected by workers’ comp even if they cannot prove exactly when, how or where they contracted the disease.
It is difficult to view the loss of Ms. Banago through a legal prism. Every life is precious, including hers as she prepared to retire after 40 years of service to others. At times like these, those left behind have more important thoughts on their minds than the nuances of workers’ compensation law. Even so, we remain a nation governed by laws and sometimes the law can assist with providing one answer to the many questions surrounding Ms. Banago’s passing, and its unintended consequences.