When law students study legal liability, they review multiple cases where one or more parties may have been the victims of an unfortunate turn of events. As some of the survivors and families left behind are preparing to sue nursing homes over COVID-19 related events, they’re discovering that the way nursing homes are typically protected from liability is changing.
Many of the first COVID-19 horror stories in the United States originated from nursing homes that saw the disease tear through the facility. It killed scores of workers and residents in each home. Many of these nursing homes completely failed to take any measures to protect residents in the early days of COVID-19. This allowed the virus to spread through the facility unchecked.
And, their workers were not given proper personal protective equipment (PPE). Not only did this result in their own illness, it allowed them to spread the illness to even more residents. But because many states are protecting them with shields from legal liability, some nursing homes may be spared from having to face the legal consequences of their actions.
Nursing Homes Have Started to See COVID-19 Lawsuits
Understandably, many families have begun to file lawsuits against the nursing homes where their loved ones have died from COVID-19. Under normal circumstances, the standard by which these nursing homes would be judged would be regular negligence law. This means that nursing homes could be held legally responsible when they acted unreasonably, causing injury to their residents. By this standard, nursing homes could be facing crushing legal liability due to their actions when COVID-19 hit.
Families are still filing lawsuits against nursing homes, albeit against a different legal backdrop in some states. For example, the first nursing home in the country to be ravaged by COVID-19 in Kirkland, WA has been sued by a number of families for their alleged lax infection control procedures. Numerous lawsuits have also been filed against nursing homes in New Jersey, where hundreds of nursing home residents died solely from coronavirus.
Nursing Homes Have Clout in Many States
The nursing home industry has a certain level of political protection in many states. Nursing home operators often give generously to politicians, and in return have the ear of many elected officials. These officials put into place laws and executive orders meant to protect these nursing homes from the onslaught of lawsuits that they would normally face. Basically, the level of protection varies by state, and many jurisdictions have made it more difficult for families to get justice after their loved one died in a nursing home.
For the nursing home industry, receiving some sort of legal protection is a matter of their own survival. If a nursing home has an outbreak of COVID-19 that resulted from its own negligence, the legal liability could be enough to put it out of business. In other words, this is an existential issue for many nursing homes.
As a result, the nursing home lobby has spared no effort to work on each individual state legislature and governor to protect themselves at the expense of families’ legal rights. It remains to be seen whether these liability shields will hold up in court when they’re challenged.
The Legal Protection Is Still Not Absolute
It’s important to know that legal protection for nursing homes is not absolute in every state. Even when a state has a liability shield, the conduct of the nursing home may be so outrageous that it’s unable to be protected by the Executive Order or legislation. Read on to see how different states are dealing with the issue. The most important thing to remember is that a lawsuit may still be an option, even if a state has a liability protection for nursing homes.
By the end of June 2020, 27 states had some sort of liability protection for nursing homes. Surprisingly, the decision about whether to grant this immunity or not didn’t reflect the usual political divides. States like New York, New Jersey and Massachusetts had these protections. Here is how some individual states have dealt with this issue.
New York had both an Executive Order and legislation that gave immunity to health care providers for the treatment of COVID-19. This was a very broad-based immunity that gave nursing homes a wide degree of legal protection. However, New York has realized that the initial legislation went too far in giving nursing homes too much cover.
Now, nursing homes have immunity for decisions that they may make in treating COVID-19. However, they are no longer protected for matters involved with the prevention of COVID-19 in the facility. Thus, they can still be sued for outbreaks.
New Jersey’s legislature acted quickly right after the outbreak of the pandemic. This state has been the site of some of the worst nursing home tragedies, including the shocking stories of bodies literally piling up at one nursing home in the state. Nursing homes were included in the legislation that protected health care providers from liability.
New Jersey’s legislation precludes civil lawsuits for negligence. However, families still have the ability to sue a nursing home for gross negligence. Given the complete lack of measures protecting residents at many nursing homes after the pandemic started, a gross negligence lawsuit may still be a burden of proof that many families can meet.
Georgia also deals with COVID-19 liability the same way as New Jersey. However, Georgia’s protection comes in the form of an Executive Order as opposed to legislation. Georgia also allowed families to file a lawsuit for gross negligence and reckless infliction of harm. In Georgia, this applies to both care for residents sick with coronavirus and the failure to prevent an outbreak in the facility.
Massachusetts has a more limited liability protection for nursing homes. Its Executive Order is more like where New York’s law stands now. It protects health care providers who are giving treatment aimed at helping residents with the disease or preventing them from getting the disease. The state’s Executive Order seemingly does not cover an instance in which COVID-19 spreads throughout a nursing home due to the facility’s own negligence.
The first thing you need to do if your loved one dies from COVID-19 in a nursing home is read the terms of the state’s law or Executive Order (if your state is one that has given nursing homes some form of immunity). You may not be prevented from filing a lawsuit even if your state has some measure in place.
If the nursing home’s negligence was bad enough or if the liability protection is more limited, you can still file a lawsuit. Do not mistake liability protections with absolute immunity. Nursing homes still do not have it, even if the state has tried to protect them.
About the Author
Jonathan Rosenfeld is a trial attorney who represents victims of nursing home negligence. He is a contributing attorney at the Nursing Home Law Center.