- Introduction
According to the Centers for Disease Control and Prevention (CDC), more than 1.3 million individuals reside in 15,600 nursing home facilities across the United States.[1] Nursing homes and other long-term care facilities (LTCF) are in the midst of difficult times. On one hand and to a significant extent, a perfect storm exists for the occurrence of elder abuse and LTCF negligence. On the other, LTCF’s are on the front line of the pandemic and are facing significant obstacles in caring for their patients. All of healthcare are in uncharted waters with respect to facing the COVID pandemic, and like the virus itself, future liability is uncharted.[2]
Long-term care facilities (LTCFs), including nursing homes, skilled nursing facilities, and assisted living facilities, take care of some of the most vulnerable populations, including elderly people and those with chronic medical conditions. This, coupled with the proximity in which the residents live, staffing shortages, and often poor infection control measures, makes them highly susceptible to infectious disease spread, including the current outbreak of coronavirus disease 2019 (COVID-19). An industry that has often been associated with issues of substandard patient care is not being stressed by the current pandemic.
2. Issues Relating to Care
McKnight’s Long-Term Care News reports that half of nursing homes it surveyed reported COVID-19 related illness among staff. Those still working struggle with shortages of masks, gloves, and gowns that appear to more serious than hospitals. Most facilities still have no access to test kits for staff, patients, or residents.[3]
The difficulties faced by these care facilities are exacerbated by longstanding problems with staffing and training, and because of delays in testing. In the case of a pandemic, the emergency quickly spirals. Nursing homes are pushed beyond their ability to cope.[4]
A logical and appropriate response would have been to increase staff. This has not occurred. Either they didn’t want to spend money or the additional staff was unavailable. The net effect is that as staff members call in sick, nursing homes are forced to skim on care. At the same time, facilities are losing much of their normal business. LTCF’s care for patients as they rehabilitate from knee and hip replacement – which is a major revenue-producer. However, with elective surgeries effectively banned nationwide, that business has come to a near-halt – thus placing additional financial strain on the industry.
3. Vulnerable Patient Population
Residents of long-term care facilities are the most vulnerable to serious illness or death from COVID-19. Many fit the profile of those most at risk— they are typically over 65 years old, they have underlying medical conditions such as heart or lung disease, diabetes, or compromised immune systems. Once they’re infected, these older adults are more likely to be hospitalized, admitted to an intensive care unit, and die.
Worse, the environments in many facilities encourage spread of the disease. R-For example, residents and staff often congregate in day rooms or dining rooms. Staff move from resident to resident, often without appropriate protective equipment. Unrelated residents often shared rooms, more so for those low-income residents on Medicaid. Much of this has changed in recent weeks, but the damage has been done.
To prevent the spread of coronavirus, facilities have been closed to visitors for weeks, and likely will be for months to come. Family members, friends, and volunteers – all of whom watch over the care given to their loved ones, are unable to visit. But neither can state ombudsmen who advocate for residents. The federal government has stopped routine inspections of nursing facilities so it can focus on infection control and those hardest-hit with COVID-19.
As the COVID-19 death toll at nursing homes climbs, the nursing home industry is lobbying states to provide immunity from lawsuits to the owners and employees of the nation’s 15,600 nursing homes. So far at least six states have provided explicit immunity from coronavirus lawsuits for nursing homes, and six more have granted some form of immunity to health care providers, which could likely be interpreted to include nursing homes.[5]
4. Previous Gaps in Infection Controls
There has been general concern over infection control procedures at nursing homes, both past and present. The Centers for Medicare and Medicaid Services (CMS) started a 3-week round of targeted infection control inspections at long-term care facilities nationwide in late March. The first wave of inspections shows that 36% of facilities did not follow proper hand-washing guidelines, and 25% failed to show proper use of personal protective equipment (PPE). Both of these are longstanding infection control measures that all nursing homes are expected to follow per federal regulation.[6]
5. Recent Deaths in LTCF’s
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.[7] In the recent weeks, a survey other LTCFs across the United States demonstrate significant numbers of suspected or confirmed cases and deaths, including facilities in Kansas[8], Oregon[9], Florida[10], Louisiana[11], and Illinois where facility in the Chicago suburbs that alone has 46 cases. These numbers are ever-increasing, making it difficult to report actual numbers.
Families, who are often provide oversight of care on their loved ones’ care and in some cases even supplementing that care, have been restricted from visiting facilities in an attempt to slow the spread. Immunity (discussed infra) stands to further dilute the protections afforded patients by allowing negligent acts to proceed without recourse.
This month, the Centers for Medicare & Medicaid Services (CMS) announced new regulatory requirements that will require nursing homes to inform residents, their families and representatives of COVID-19 cases in their facilities. In addition CMS will now require nursing homes to report cases of COVID-19 directly to the Centers for Disease Control and Prevention (CDC).[12]
6. State Immunity Provisions
The topic of immunity covers provisions provided by both federal and state governments. State immunity comes about by state-specific laws, executive orders, and provisions.
The nursing home industry has provided driving force for immunity by lobbying states to provide immunity from lawsuits to the owners and employees of the nation’s 15,600 nursing homes. In an environment where all focus should be on the care of their patients, LTCF’s have the temerity to ask for blanket immunity from lawsuits. Trade groups representing nursing homes argue that liability protections are crucial to ensure patients get the care they need. They argue that 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 need to provide care during the COVID pandemic without fear of reprisal. However, as is the case with all grants of immunity, these waivers protect providers by removing the rights of residents to obtain redress for certain occurrences. This may serve to shield negligent actors from rightful discipline. Moreover, immunity may remove the incentive for long-term care facilities to take preventative measures, including employee testing and ensuring sufficient supply of personal protective equipment.[13]
The balance of interests including public policy and those of the patients are presently tenuous. While there may be challenges to the effectiveness of waivers that eliminate causes of action, liability waivers have been a way to recognize the challenges presented to such facilities by COVID-19, including shortages of health care staff and equipment, and waivers encourage such facilities to continue providing services in circumstances where problems are difficult to avoid.
Amongst the states, there is a patchwork quilt of liability rules. The degree of immunity varies from state to state however much of the measures taken are the same. Most states provide LTCF’s with qualified 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.
So far at least six states have provided explicit immunity from coronavirus lawsuits for nursing homes, and six more have granted some form of immunity to health care providers, which legal experts say could likely be interpreted to include nursing homes.[14]
The theory on which immunity is founded is that of medical necessity. This will likely not prevent federal claims, but will represent a surmountable obstacle. 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.
In Virginia, for example, a state statute applicable to “disasters” provides liability protection during state or local emergencies, where the exigencies of the emergency “render[] the health care provider unable to provide the level or manner of care that otherwise would have been required in the absence of the emergency…”[15] As is the case with most states, the immunity is inapplicable to cases involving gross negligence or willful misconduct.
In Tennessee, the Governor is empowered to declare through executive order “limited liability protection to health care providers, including hospitals and community mental health centers” providing care to “victims” of an emergency.Once again, however, the immunity is inapplicable to claims found to involve gross negligence or willful misconduct.[16]
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. If nursing home 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.
7. Federal Protection and The Public Readiness and Emergency Preparedness (PREP) Act Declaration
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. Like state immunity, the PREP Act also leaves open the possibility of personal liability for claims of “willful misconduct.” The burden of proof is on the plaintiff to demonstrate willful misconduct by “clear and convincing evidence.”[17]
None of the federal or state law immunities provide “absolute” immunity from legal claims against health care providers. Absolute immunity provisions for providers are rare, and they are generally confined to claims made against federal and state employees and contractors.
Terms such as “gross negligence” and “willful misconduct” are not absolute; they depend, as the federal declaration expanding the scope of the PREP Act noted, on “the facts and circumstances” of individual cases.
The primary concern with immunity is how the measures might impact quality of care in LTCF’s. Clearly vulnerable populations will become ill, and this will happen at an exponential rate. The issue is how the LTCF’s respond to illness.[18]
There are unanswered issues relating to immunity. What “contract” must a health care provider or its employees have with the state to be covered by an executive order? Is a Medicaid contract enough? Is the immunity limited to the treatment of a COVID-19 positive patient or resident, or does it extend to all treatment of all patients and residents during the COVID-19 outbreak?
The bottom line with respect to immunity arrangements is that health care providers and employees have immunity from civil liability in treating COVID-19 patients and residents, and from such liability if other patients or residents contract COVID-19, as long as the health care facility and its employees were not grossly negligent or did not engage in willful misconduct.[19]
8, Conclusion
With respect to LTCF liability, some degree of protection is appropriate. Health-care workers are risking their own safety to treat Covid-19 patients, particularly due to the lack of testing and personal protective equipment. The personal protective equipment 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. Older people are going to contract infections and many will suffer catastrophic outcomes.[20]
On the other hand, now might not be the time to immunize facilities. Family members are not permitted to oversee care of their loved ones. It leaves the patients unprotected and without recourse while providing the LTCF the ability to act with impunity – this in a setting where LTCF’s are often known for providing inadequate care. Immunizing the nursing homes during an outbreak takes away their responsibility to perform basic functions such as testing, taking temperatures, and making sure that there’s enough PPE for their staff.
Inevitably, lawyers will challenge this in the courts. In my view, 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. Consider the variables that go into the balance of powers, and those relinquished by the elderly patient.
First, coronavirus is particularly lethal in elderly patients. Prevention is not more complicated than preventing the flu – frequent hand washing, frequent disinfecting of surfaces, wearing of facemasks and gloves and isolating sick patients. Family members and state inspection officials are no longer permitted inside the facilities – thus removing a critical level of oversight and protection afforded the patient. Providing immunity to LTCF’s combined with visitation restrictions effectively removes all protections afforded to the patients. Pre-emptive and protective measures – such as segregating sick patients and employees, including finding alternative placement for patients (such as temporarily sending eligible patients to family homes), should all on the table as they are straight-forward. Designate specific facilities in a community to take only COVID-19 positive patients seems rationale, and the logistics are reasonable.
Taking away all protections afforded to our most vulnerable population is immoral. 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. The LTCF industry is a poorly regulated industry with a long history of chronic understaffing, inadequate infection control, a lack of critical equipment and weak labor standards. When the system is taxed, as it is during a pandemic, elder mistreatment is certain to occur. There is an increased risk for those issues right now. It has recently been reported that there are 2,300 confirmed cases in LTCF’s with 450 deaths. This is staggering mortality rate of 20 percent.
In general, during a pandemic, where contagious people crowd spaces shared with the uninfected or the healthy, concern over liability is heightened. But even as extra precautions are taken, the paradox remains twofold: the crisis mode of the moment ups the ante for potential negligence and the increased contact ups the ante for additional liability.
In general, when it comes to infectious disease, those who would file suit also face a causation hurdle. Identifying precisely where the infection came from can be difficult. In addition, defining the standard of care during a pandemic can be a challenge. During times of a health crisis, making the determination of reasonable vs. unreasonable care is largely in the eye of the beholder.[21]
[1] Centers for Disease Control and Prevention. Nursing home care. Last reviewed March 11, 2016. https://www.cdc.gov/nchs/fastats/nursing-home-care.htm.
[2] Responding to the Coming Lawsuit Surge: Prolicy Prescriptions for Addressing COVID-19 Tort Litigation. American Tort Reform Association, April 2020.
[3] Danielle Brown, Immunity from states in COVID-based civil suits won’t protect operators from federal action: expert. McKnight’s Long-Term Care News. April 29, 2020. https://www.mcknights.com/news/immunity-from-states-in-covid-based-civil-suits-wont-protect-operators-from-federal-action-expert/
[4] CMS Waives Nurse-aide Training, Certification Requirements
[5] https://www.nbcnews.com/health/health-care/nursing-home-industry-pushes-immunity-lawsuits-during-coronavirus-emergency-n1192001, NBC News
[6] https://www.webmd.com/lung/news/20200410/covid-19-shows-gaps-in-controls-at-nursing-homes
[7] Public health-Seattle & King County COVID-19 update for March 18, 2020. Last updated March 18, 2020. https://www.kingcounty.gov/depts/health/news/2020/March/18-covid.aspx.
[8] After first COVID-19 death in Kansas, KCK facility says no one else showing signs or symptoms of coronavirus. Ksnt.com March 16, 2020.
[9] COVID-19 testing completed for 151 residents at Oregon Veterans’ Home in Lebanon. KVAL March 18, 2020. https://kval.com/news/local/covid-19-testing-completed-for-151-residents-at-oregon-veterans-home-in-lebanon.
[10] Glorioso A. Coronavirus surfaces in 19 elder care facilities in Florida. Politico March 18, 2020. https://www.politico.com/states/florida/story/2020/03/18/coronavirus-surfaces-in-19-elder-care-facilities-in-florida-1267712.
[11] Simerman J, Vargas RA. ‘Indescribable” sadness at Lambeth House: fears of coronavirus spreading and killing are now reality. Times Picayune March 18, 2020. https://www.nola.com/news/coronavirus/article_aaa731ae-6969-11ea-bb01-57709c10f84c.html.
[12] https://www.cms.gov/newsroom/press-releases/trump-administration-announces-new-nursing-homes-covid-19-transparency-effort CMS.gov
[13] American Health Care Association. Combatting Coronavirus: Our Fight To Protect Seniors & Individuals with Disabilities in Long Term Care
https://www.ahcancal.org/facility_operations/disaster_planning/Pages/Coronavirus.aspx
[14] Laura Strickler and Adiel Kaplan, Nursing home industry pushes for legal immunity during COVID-19 emergency, NBC News, April 27, 2020
[15] § 8.01-225.02. Certain liability protection for health care providers during disasters.
https://law.lis.virginia.gov/vacode/title8.01/chapter3/section8.01-225.02/
[16] Health Care Provider Liability During the COVID-19 Crisis: Limits, Immunities, Considerations, and Guidelines – By State.
https://www.bakerdonelson.com/webfiles/Publications/COVID-19_State_Comparison_04_06_2020.pdf
[17] 42 U.S. Code § 247d–6d.Targeted liability protections for pandemic and epidemic products and security countermeasures
[18] Priya Chidambaram. State Reporting of Cases and Deaths Due to COVID-19 in Long-Term Care Facilities. https://www.kff.org/medicaid/issue-brief/state-reporting-of-cases-and-deaths-due-to-covid-19-in-long-term-care-facilities/. Published: Apr 23, 2020
[19] Coronavirus Liability Shields for Nursing Homes Only Go So Far
Bloomberg Law April 24, 2020.
[20] Q&A: COVID-19 Lawsuits Possible Now That Nursing Homes on Notice
[21] Liability protections for health care professionals during COVID-19; American Medical Association. April 8,2020