The quality of healthcare provided to elderly citizens is always a hot-button topic, fraught with emotions on all sides. It’s been heightened recently by the COVID-19 outbreak and the vulnerability of nursing home residents. Healthcare providers and industry officials fear a flood of lawsuits as the death toll rises. Now, legal immunity for nursing homes is on the table in state governments across the country.
New York and Massachusetts, both “hotspot” areas, have already passed legislation that provides nursing homes with explicit immunity from lawsuits.
Four states—Connecticut, Georgia, Michigan and New Jersey—have executive orders protecting nursing homes from legal action.
Five other states—Illinois, Arizona, Louisiana, Wisconsin and Kentucky—have either executive orders or legislation that immunize “healthcare services,” but do not specifically name nursing homes.
Opponents of nursing home immunity are outraged by what they see as an undercutting of legal protection for the elderly at a time when they are most vulnerable. They cite the fact that of the nation’s 15,000 nursing homes, 70 percent are owned by for-profit companies and more than half—57 percent—are owned by a chain provider.
“Most staff in nursing homes are doing the very best they can,” said Toby Edelman, senior policy attorney for the Center for Medicare Advocacy, a group that advocates for nursing home residents. “But the combination of fewer rules, no family…and now industry efforts to get immunity from civil and criminal liability for anything related to coronavirus is a lethal combination in the hands of unscrupulous people.”
Furthermore, opponents say that immunity is a legislative goal the industry has long sought and they are using COVID-19 as a cover to try and achieve it. The stories of patients who have died from dehydration or other neglect serve to bolster their case.
But nursing homes see it differently. They point out that confidentiality rules prevent commenting on public stories that may paint them and their staff in a negative light. And, more to the point, that the pandemic has created an unprecedented situation for which there are no set rules.
The frequently changing guidelines coming from the Centers for Disease Control and Prevention (CDC), as experts try and get a handle on the coronavirus, are examples of what healthcare providers must deal with—all while their patient load increases. The fear of the industry side is that unscrupulous attorneys will exploit the changing standards to try and prove negligence where none existed.
The legal bar of negligence is, as always, at the center of discussion in any liability cases. Supporters of nursing home immunity assure people they aren’t seeking to allow gross negligence. Opponents of immunity fear a higher bar will fail to protect the elderly. The legislatures and governors of each state will have to sort out the competing claims.