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Coronavirus Liability Shields for Nursing Homes Only Go So Far

April 24, 2020, 9:45 AM

The coronavirus could shine a light on nursing homes that failed to give proper care before the pandemic began, even as states take steps to shield some facilities from getting sued.

Governors in at least six states—New York, New Jersey, Connecticut, Illinois, Michigan, and Arizona—have issued executive orders protecting nursing homes and other health-care facilities from being held civilly liable for the injury or death of Covid-19 patients in their care. New York and Massachusetts have passed laws to the same effect. The measures, however, are temporary and only stretch so far, attorneys say.

If nursing homes’ practices rose to the level of malpractice or negligence prior to the effective date of an emergency order or piece of legislation, “then this immunity doesn’t protect their facility in any way,” said Kathleen Hoke, a professor at the University of Maryland Carey School of Law and director of the Network for Public Health Law’s eastern region.

For instance, if a facility had insufficient staffing, personal protective equipment, or procedures for isolating patients going into the crisis, that’s going to be the basis of a negligence claim, she said.

The state liability shields are aimed at making it easier for health-care providers on the front lines of the pandemic to provide medical services without fear of costly litigation. But patient advocates and some personal injury attorneys have raised concerns over how the measures might impact quality of care in facilities treating some of the populations most vulnerable to the virus.

Nationwide, 39% of nursing homes had deficiencies related to the spread of infections in 2017—well before the pandemic started, according to federal data compiled by the Kaiser Family Foundation. California had the highest proportion at 63%, followed by Michigan at 58%, and Illinois at 56%.

Hot Spots

Nursing homes have been hot spots for virus outbreaks around the country.

The first major U.S. outbreak of Covid-19 occurred at the Life Care Center nursing home in Kirkland, Wash., where the virus spread rapidly and killed 37 people. In New Jersey, nearly 40% of Covid-19-related deaths took place at nursing homes, according to data from state officials.

Still, trade groups representing nursing homes and other health-care providers say the liability protections are crucial to ensure patients get the care they need.

“Long term care workers and centers are on the frontline of this pandemic response and it is critical that states provide the necessary liability protection staff and providers need to provide care during this difficult time without fear of reprisal,” Mark Parkinson, president and CEO of the American Health Care Association and the National Center for Assisted Living, said in an emailed statement.

The measures taken by each state are largely the same. They give health-care facilities immunity from civil liability for damages arising from alleged acts or omissions undertaken in good faith in the course of providing services to help fight Covid-19. The measures generally exclude acts or omissions that constitute actual malice, gross negligence, or willful misconduct.

The executive orders states have issued over the past month have been made retroactive to the beginning of March, when the state declared Covid-19 a public emergency.

An emergency act is in place from the time the disaster was declared until the time the disaster ends, so if a facility is sued for something that happened prior, that lawsuit would be allowed to proceed, said Frances Ciardullo, special counsel at Barclay Damon LLP in Syracuse, N.Y. “It really depends on what the specific allegations are,” she said.

But proving a facility is liable for an injury or death despite a state emergency order or shield law will depend not only on what occurred but also when it occurred, defense attorneys say.

A plaintiff will have to show that the negligent action was a substantial factor in bringing about that individual’s injury, Ciardullo said. “There has to be a causal connection,” she said.

High Bar

Health-care facilities will still be held liable for acts of gross negligence under the measures. It’s a high bar to prove gross negligence, however, and some attorneys say the pandemic may raise that bar even higher.

“It would only be for something that everyone would collectively say ‘That’s outrageous conduct for a health provider they should not have any protections,’” said Jason Lundy, a health-care attorney and shareholder at Polsinelli’s Chicago office.

“If I’m a nursing home and I throw up my arms and say ‘everyone’s going to die from this anyway, and staff, don’t even bother to use masks that I have in the closet’—that’s reckless,” he said. “The immunity laws are not going to shield nursing homes from that.”

In New York, acts or omissions resulting from a resource or staffing shortage wouldn’t amount to willful or intentional criminal misconduct or gross negligence, according to a measure that was included in the state’s $177 billion spending plan for fiscal 2020-2021.

Duty of Care

LeadingAge, a group representing nonprofit nursing homes, says the measures are needed because health-care workers are risking their own safety to treat Covid-19 patients, particularly due to the lack of testing and personal protective equipment.

“This PPE shortage coupled with the shortage of testing for professionals means that patients and health care workers in these facilities can inadvertently infect other patients, through no fault of their own,” LeadingAge President and CEO Katie Smith Sloan said in a statement.

But personal injury attorneys argue now is not the time to immunize facilities that they say are already notorious for providing inadequate care.

Immunizing the nursing homes during an outbreak, takes away their responsibility to test, take temperatures, and make sure that there’s enough PPE for their staff, said James H. Chalat, a plaintiff’s attorney at Chalat Hatten & Banker PC in Denver, Colo.

“People aren’t able to go in and see ‘is my dad being catheterized on time? How does their sanitation and hygiene look?’ You’re left with no witnesses,” he said.

Nursing homes and facilities with prior failings wouldn’t be shielded under the state immunity provisions, Chalat said. But, he noted, “any use of the crisis to expand immunity to the benefit of industry, as a matter of law, is adverse to consumer and patient safety in my opinion, and wholly unnecessary.”

Strong Defense

The federal government has also granted legal immunity, under the Public Readiness and Emergency Preparedness (PREP) Act to entities from liability for claims related to their use of federal measures to combat Covid-19.

The various state orders are meant to protect against claims brought under state law and serve as a strong defense against allegations of ordinary negligence, said James Hodge Jr., a professor at the Sandra Day O’Connor College of Law at Arizona State University and director of the Network for Public Health Law’s western region office.

That’s not to say nursing homes that had failings during the pandemic will walk, Hodge said. Those bringing claims will just have to prove gross negligence, which will take strong evidence since Covid-19 is a strong defense, he said.

State immunity laws will likely discourage lawyers from taking these types of cases to begin with, “which is the idea,” Chalat said.

“I severely doubt we’re going to be systematically tagging nursing facilities with liability for these deaths but for the sheer fact that we are working up against the most sensational pandemic situation the United States has seen in a hundred years,” Hodge said.

—With assistance from Keshia Clukey

To contact the reporters on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com; Valerie Bauman in Washington at vbauman@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com; Alexis Kramer at akramer@bloomberglaw.com

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