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Should Nursing Homes Be Immune From Liability During COVID-19?

by | Jun 10, 2020 | Nursing Homes

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As multiple news reports have shown, nursing homes are hot spots for the novel coronavirus and the disease it causes, COVID-19. According to Kaiser Family Foundation data, deaths in long-term care facilities account for at least half of COVID-19 deaths in 18 states.

Despite their inherent risks, many states are enacting legislation that temporarily exempts skilled nursing facilities from liability. This measure presumably protects these facilities from lawsuits stemming from COVID-19 unless plaintiffs can prove gross negligence or willful misconduct.

The nursing home industry lobbied for these protections to ensure staff and providers can do their jobs without risk of getting sued. These individuals care for vulnerable populations while dealing with PPE and staff shortages. In other words, if a dozen patients in one facility develop COVID-19, that facility shouldn’t have to face a dozen lawsuits.

Negligence Should Not Be Ignored

Consumer advocates, as well as myself and many families of nursing home residents, have a different opinion. The novel coronavirus pandemic has exposed longstanding issues around infection prevention and substandard care in nursing home facilities. Absolving these facilities from liability makes it easier for these practices to continue.

Nursing homes are the perfect storm for neglect, infections and other problems. Many times, when older adults or their families can’t afford assisted living, they end up in a nursing home that accepts Medicaid.

These facilities may be chronically short of staff, including doctors, nurses and aides. If a resident falls or falls ill in the middle of the night, there might not be anyone around to help them. If a patient doesn’t get any visitors, the lack of oversight is even more problematic, as there’s no “second set of eyes.”

In the midst of COVID-19, nursing home residents are even more at risk of dying from an acquired infection, from a fall that no one saw, or from another illness. Yet, nursing homes want to absolve of liability. It’s almost criminal.

Isolating the Isolated

What makes the issue even more complicated is the current state of isolation. Because of the pandemic, long-term care facilities aren’t allowing visitors. Family members that normally keep watch over loved ones can’t do that right now. And the Centers for Medicare and Medicaid Services has limited presence of ombudsmen – individuals who investigate claims and advocate on residents’ behalf. Even typical state inspections are limited right now.

In New York, a new law provides immunity from civil and criminal liability from actions stemming from nursing home patients’ care. It applies regardless of whether the patient has COVID-19 and includes problems that result from “resource or staffing shortage.”

Where Does California Stand on Nursing Home Liability?

In California, representatives from the California Hospital Association and the California Medical Association, among others, proposed an executive order designed to protect nursing homes from liability. Governor Gavin Newsom is currently reviewing the order.

How You Can Protect Your Loved Ones

If you have a friend or family member that lives in a nursing home in one of the states that currently grant immunity—Alabama, Louisiana, Kentucky, Mississippi, Nevada, New York, North Carolina, Rhode Island, Vermont and Wisconsin. Governors in Arizona, Connecticut, Illinois, Georgia, Massachusetts, Michigan, New Jersey and Virginia—stay in close contact with them.

If you suspect they’re not being adequately protected from coronavirus exposure, or if you suspect neglect, contact that state’s ombudsman. Skilled nursing facilities are required to post that info.

No matter where you and your loved ones live, contact your state and local legislators to express your opinions about liability waivers.