Faced with 20,000 coronavirus deaths and counting, the nation’s nursing homes are pushing back against a potential flood of lawsuits with a sweeping lobbying effort to get states to grant them emergency protection from claims of inadequate care. At least 15 states have enacted laws or governors’ orders that explicitly or apparently provide nursing homes and long-term care facilities some protection from lawsuits arising from the crisis. And in the case of New York, which leads the nation in deaths in such facilities, a lobbying group wrote the first draft of a measure that apparently makes it the only state with specific protection from both civil lawsuits and criminal prosecution.
New York’s immunity law signed by Democratic Gov. Andrew Cuomo was drafted by the Greater New York Hospital Association, an influential lobbying group for both hospitals and nursing homes that donated more than $1 million to the state Democratic Party in 2018 and has pumped more than $7 million into lobbying over the past three years.
The industry is forging ahead with a campaign to get other states on board with a simple argument: This was an unprecedented crisis and nursing homes should not be liable for events beyond their control, such as shortages of protective equipment and testing, shifting directives from authorities, and sicknesses that have decimated staffs.
“This has very little to do with the hard work being done by health care providers,” said Mike Dark, an attorney for California Advocates for Nursing Home Reform, “and everything to do with protecting the financial interests of these big operators...“What you’re really looking at is an industry that always wanted immunity and now has the opportunity to ask for it under the cloak of saying, ‘Let’s protect our heroes,’”
Toby Edelman of the Center for Medicare Advocacy is troubled that homes are getting legal protections while family members aren’t being allowed to visit and routine government inspections have been scaled back.
“Nobody is looking at what’s happening,” she said, adding that immunity declarations could make even gross or willful negligence suits harder since homes could argue any deficiencies were somehow tied to the pandemic. “Everything can’t be blamed on COVID-19. Other things can happen that are terrible,” she said. “Just to say we’re in this pandemic so anything goes, that seems too far.”
Just because you have a pandemic doesn’t mean you give a pass on people exercising common sense,” said Dr. Roderick Edmond, an Atlanta lawyer representing families suing over COVID-19 deaths in an assisted-living facility.
“If you take the power of suing away from the families, then anything goes,” said Stella Kazantzas whose husband died in a Massachusetts nursing home with the same owners as the home hit by the nation’s first such outbreak near Seattle, which killed 43 people.
“They already knew in Washington how quickly this would spread,” she said. “They should have taken extreme measures, sensible measures. And they were not taken.”
American Health Care Association CEO Mark Parkinson said the notion of lawyers gearing up for lawsuits in the “middle of a battle to save the elderly” is “pathetic” and doesn’t consider the hardships nursing home workers have endured.
“The second-guessing of people after a tragedy, if those people did the best that they could under the circumstances, is just wrong,” said Jim Cobb, the New Orleans attorney who successfully defended nursing home owners charged in the deaths of 35 residents who drowned in Hurricane Katrina.
“There’s a lot to be said for someone acting in good faith in the face of a natural disaster and state of emergency, and they should have criminal immunity.”
Nationally, the lobbying effort is being led by the American Health Care Association, which represents nearly all of the nation’s nursing homes and has spent $23 million on lobbying efforts in the past six years. States that have emergency immunity measures are Alabama, Arizona, Connecticut, Georgia, Illinois, Kentucky, Massachusetts; Michigan, Mississippi, New Jersey, Nevada, Rhode Island, Vermont and Wisconsin.