Skilled nursing facilities face many challenges on a regular basis but during the coronavirus they have proven to be especially challenging.
In response, many states are attempting to issue immunity to nursing homes and assisted living facilities from
lawsuits related to the care they are providing during the pandemic.
The coronavirus pandemic has hit nursing homes particularly hard. One-third of all deaths are residents or workers
in nursing homes or other long-term care facilities, and in 15 states more than half of all COVID-19 deaths have
been related to long-term care.
In many circumstances this is due to the fact that Governors have ordered these facilities to take patients that
have COVID-19 instead of having them remain in a hospital.
Some feel that making the facilities immune is right because of the orders from the Governors and some
long-term care advocates are fiercely opposing the measures.
If the measure goes through residents and families who are unhappy with the way their facility has handled
the outbreak may not have much recourse.
To date, at least 18 states have granted long-term care facilities some level of legal immunity from lawsuits related
to the pandemic and another 10 states are considering protections.
These provisions tend to grant immunity from civil, but not criminal, lawsuits to facilities that are providing care in
good faith during the pandemic (an exception is New York’s recently enacted law, which gives immunity to
nursing homes from both civil and criminal lawsuits).
is this because the Governor of New York is trying to shield himself from being drawn into these lawsuits because he was one of the Governors who directly ordered the facilities to take patients with coronavirus instead
of having the remain in a hospital setting for care?
While the immunity does not apply to willful or criminal misconduct or gross negligence, it may apply to
harm stemming from resource and staffing shortages. As the states act, industry lobbying groups are pushing for
the federal government to enact broad immunity protections as well.
Long-term care advocates are opposing the rush to grant immunity to nursing homes, with one advocate calling
it “basically a license for neglect.”
One group of organizers that advocate on behalf of nursing home residents sent a letter to Congress arguing
that residents need the protection that a lawsuit can provide now more than ever.
The letter points out that none of the previous safeguards for residents (including long-term care ombudsmen,
regular inspections, and family supervision) are currently available to residents due to lockdowns.
Despite states' grants of immunity, families of nursing home residents affected by COVID-19 are looking for ways
to hold the facilities accountable. E-Street Band guitarist Nils Lofgren has spoken out about his anger
and disappointment over New Jersey’s immunity provisions and has filed a lawsuit against his mother-in-law’s
A Florida law firm is also planning to file suit against two nursing homes for their handling of the pandemic,
and a California family is suing a nursing home, arguing that the nursing home negligently allowed a staff member
with COVID-19 to work at the facility.
Another potential avenue of liability for nursing homes is from staff lawsuits. Many nursing home workers contracted COVID-19 at work. The family of a deceased nursing home employee in Texas is suing the nursing home for wrongful death. The lawsuit alleges the facility did not properly respond to the pandemic and did not provide their employees with personal protection equipment.
What do you think?
Is immunity valid?
Do you think that the facilities did everything they could based on the circumstances at hand?
Do you think this is a way to shield politicians?
Do you think this is just a way for attorneys to cash in on the pandemic?
Let us know.
Questions about long term care, Medicaid planning or asset protection? contact us today for a free phone consultation 855.471.6771