Civil Immunity for Nursing Homes During COVID Crisis?

Are families prevented from suing nursing homes for negligent care during the coronavirus outbreak?

In a minority of states, governors have signed executive orders offering civil immunity to healthcare providers. This would mean the healthcare provider is immune from civil litigation, i.e. a lawsuit, if they act negligently and harm a patient. While the grant of immunity may make sense if narrowed in scope (hospital staff treating COVID patients in an emergency overflow situation), a broad grant of immunity to non-hospital healthcare facilities, like nursing homes, does not make sense.

Undoubtedly, widespread grants of immunity from nursing home negligence lawsuits will be tested in state courts.

What Kind of Legal Immunity is being Granted to Nursing Homes and Assisted Living Facilities?

The degree of immunity varies from state to state. Some states are narrowly granting immunity to healthcare providers from COVID-specific lawsuits. Others are essentially giving the nursing home a free pass on any negligent act, so long as it occurs during the crisis.

For instance, Governor Cuomo was one of the first leaders to give immunity for New York nursing home neglect lawsuits. Illinois has also enacted some degree of immunity from negligent care provided during a COVID emergency. In Massachusetts, Governor Charlie Baker filed legislation that would bar nursing homes from being sued for negligence while ‘impacted by the COVID-19 emergency’. In Florida, nursing homes have requested “immunity from any liability, civil or criminal.” Interpreted broadly, this immunity would extend well beyond COVID cases and include garden variety Florida nursing home negligence injuries, like bed sores and patient falls.

Nursing Home Corporations Actively Seeking to Protect their Bank Accounts, Rather than Focusing on Patient Care

Brian Lee, a former Long Term Care Ombudsman for the State of Florida and current executive director of the non-profit Families for Better Care, was quoted as saying,

“It just got my blood boiling. I was shocked by the temerity of the industry to ask for blanket immunity from lawsuits … and to do it during the middle of this crisis. It’s appalling, and it’s a total slap in the face of families . . . All of their focus should be on saving our families lives, but it shows that, at the end of the day, they care more about their own protections. It’s gross.”

Is Civil Immunity for a Nursing Home’s Wrongdoing Enforceable?

Inevitably, lawyers will challenge this in the courts. A governor’s executive order should not be able to immunize a tortfeasor from all wrongdoing. This infringes on important constitutional rights like access to courts and the Seventh Amendment right to a civil jury trial.

The Takeaway on Lawsuit Immunity for Nursing Homes and Assisted Living Facilities

As nursing home abuse attorneys, we understand that we are in uncharted waters. COVID-19 has overwhelmed healthcare systems in coronavirus hotspots around the U.S. In overcrowded New York City hospitals, we understand the purpose of immunizing a physician while operating on a coronavirus patient during a true emergency.

However, to grant blanket immunity to nursing homes is a lobbying overreach by the industry. Nursing home corporations should not be permitted to exploit the pandemic to avoid responsibility for ordinary negligence injuries. For example, if a CNA carelessly drops a resident in the shower and causes a hip fracture, why should the family be prohibited from holding the facility accountable?

In true isolated crisis care emergencies, lawsuit immunity may make sense for front line nurses and doctors. But we cannot allow the powerful nursing home lobby to achieve civil immunity for systemic wrongdoing and understaffing, which have been perennial problems plaguing this industry for decades.

If your loved one suffered a serious injury, broken bones, malnourishment or wrongful death inside a long term care facility, contact Senior Justice Law Firm to receive a complimentary case consultation. Call us at 888-375-9998 or chat with us now to see if you have a nursing home negligence lawsuit.