Coronavirus US: Faced with 20,000 dead, care homes seek shield from lawsuits

A look at state limits on suing care homes in virus crisis

Sunday, May 3, 2020

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CICERO, Ill. -- Faced with 20,000 coronavirus deaths and counting, the nation's nursing homes are pushing back against a potential flood of lawsuits with a sweeping lobbying effort to get states to grant them emergency protection from claims of inadequate care.

At least 15 states have enacted laws or governors' orders that explicitly or apparently provide nursing homes and long-term care facilities some protection from lawsuits arising from the crisis. And in the case of New York, which leads the nation in deaths in such facilities, a lobbying group wrote the first draft of a measure that apparently makes it the only state with specific protection from both civil lawsuits and criminal prosecution.

Now the industry is forging ahead with a campaign to get other states on board with a simple argument: This was an unprecedented crisis and nursing homes should not be liable for events beyond their control, such as shortages of protective equipment and testing, shifting directives from authorities, and sicknesses that have decimated staffs.

"As our care providers make these difficult decisions, they need to know they will not be prosecuted or persecuted," read a letter sent this month from several major hospital and nursing home groups to their next big goal, California, where Gov. Gavin Newsom has yet to make a decision. Other states in their sights include Florida, Pennsylvania and Missouri.

Watchdogs, patient advocates and lawyers argue that immunity orders are misguided. At a time when the crisis is laying bare such chronic industry problems as staffing shortages and poor infection control, they say legal liability is the last safety net to keep facilities accountable.

They also contend nursing homes are taking advantage of the crisis to protect their bottom lines. Almost 70% of the nation's more than 15,000 nursing homes are run by for-profit companies, and hundreds have been bought and sold in recent years by private-equity firms.

"What you're really looking at is an industry that always wanted immunity and now has the opportunity to ask for it under the cloak of saying, 'Let's protect our heroes,'" said Mike Dark, an attorney for California Advocates for Nursing Home Reform.

Nowhere have the industry's efforts played out more starkly than in New York, which has a fifth of the nation's known nursing home and long-term care deaths.

New York's immunity law signed by Democratic Gov. Andrew Cuomo was drafted by the Greater New York Hospital Association, an influential lobbying group for both hospitals and nursing homes that donated more than $1 million to the state Democratic Party in 2018 and has pumped more than $7 million into lobbying over the past three years.

While the law covering both hospital and nursing care workers doesn't cover intentional misconduct, gross negligence and other such acts, it makes clear those exceptions don't include "decisions resulting from a resource or staffing shortage."

Cuomo's administration said the measure was a necessary part of getting the state's entire health care apparatus to work together to respond to the crisis and save lives.

Nationally, the lobbying effort is being led by the American Health Care Association, which represents nearly all of the nation's nursing homes and has spent $23 million on lobbying efforts in the past six years.

Other states that have emergency immunity measures are Alabama, Arizona, Connecticut, Georgia, Illinois, Kentucky, Massachusetts; Michigan, Mississippi, New Jersey, Nevada, Rhode Island, Vermont and Wisconsin.

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Their provisions vary but largely apply to injuries, deaths and care decisions, sometimes even to property damage. But there are limitations: Most make exceptions for gross negligence and willful misconduct.

Toby Edelman of the Center for Medicare Advocacy said immunity declarations could make even gross or willful negligence suits harder since homes could argue any deficiencies were somehow tied to the pandemic.

"Everything can't be blamed on COVID-19. Other things can happen that are terrible," she said. "Just to say we're in this pandemic so anything goes, that seems too far."

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All the new immunity laws notwithstanding, there is a potential wave of lawsuits coming. Illinois lawyer Steven Levin said he's received dozens of calls from people considering suing homes over the outbreak. And a lawyer in Massachusetts said he's gotten maybe 70 from families with relatives at homes struck by the virus.

"We're getting inundated," said David Hoey, whose practice near Boston has been suing homes for 25 years. "They're grieving and they're confused. ... 'My loved one just died from COVID. What can I do?'"

American Health Care Association CEO Mark Parkinson said the notion of lawyers gearing up for lawsuits now is "pathetic."

"These lawsuits are distracting facilities from being able to focus on taking care of people," he said. "We are in the middle of a battle right now."

Here is a brief look at those measures:

15 STATES: Through laws or governor's orders, these states either explicitly or apparently afford some legal cover to nursing homes and other health care institutions and professionals: Alabama, Arizona, Connecticut, Georgia, Illinois, Kentucky, Massachusetts, Michigan, Mississippi, New Jersey, Nevada, New York, Rhode Island, Vermont and Wisconsin.

BUILT-IN PROTECTIONS: At least three other states -- Indiana, Louisiana and Virginia -- already had laws on the books that shield health care providers from being sued over their actions during emergencies, to some extent.

NEW YORK STANDS ALONE: The state with the most nursing home deaths is apparently the only one specifically shielding nursing homes from both civil lawsuits and criminal prosecutions over care affected by the crisis.

GROSS NEGLIGENCE EXCEPTION: Most states make exceptions for gross negligence, willful misconduct, acting in bad faith and sometimes additional conditions.

SCARCE SUPPLIES: Measures in Connecticut, New York and Mississippi extend some protections to decisions made because of a lack or resources. Vermont's executive order allows for "modifying numbers of beds, preserving personal protective equipment and triaging access to services or equipment as necessary to respond to the COVID-19 outbreak."

OTHER RESTRICTIONS: Arizona's executive order specifies that the protections don't apply to rendering care while drunk or high. Rhode Island's excludes negligence toward patients whose care wasn't affected by the coronavirus crisis. Massachusetts' law makes a point of leaving room to litigate over discriminatory conduct and for the state attorney general to pursue consumer protection actions.

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