States Grant Nursing Homes Legal Protections in Wake of Covid-19

At least 15 states have granted some lawsuit protection to nursing homes and long-term care facilities as a result of laws or governors’ orders. The move comes as Covid-19 deaths in nursing homes and long-term care facilities have reached more than 20,000, according to the Associated Press.  Unclear is whether the AP is reporting actual reported deaths, or estimated deaths, since many claim that nursing home deaths are under-reported.

Protections vary, but they usually protect nursing homes from simple negligence for injuries, deaths and care decisions during the pandemic. Suits are generally allowed for gross negligence, actual malice and willful misconduct.

States that have enacted lawsuit protection include Alabama, Arizona, Connecticut, Georgia, Illinois, Kentucky, Massachusetts, Michigan, Mississippi, New Jersey, New York, Nevada, Rhode Island, Vermont and Wisconsin.

Some states have enacted laws and executive orders that immunize health care providers but don’t specifically mention nursing homes. Protection for health care providers will likely also protect nursing homes.

The new law in New York immunizes hospitals and nursing homes from claims of ordinary negligence for providing care during the COVID-19 crisis.  The facilities are also immune from criminal liability.  Immunity does not apply to willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm.  The law specifically says any actions taken as a result of staffing shortages or supply shortages are entitled to protection.

Critics say nursing homes should be held accountable for deficiencies, such as staffing shortages and poor infection control, that were a problem even before the pandemic.  Among the critics is Richard Mollot, executive director of the Long Term Care Community Coalition, which advocates for nursing home residents, NPR reports.

“Providing blanket immunity to nursing homes for any kind of substandard care, abuse or neglect is an extremely poor and dangerous idea anytime, and particularly so in regard to COVID-19,” Mollot told NPR.