Long-term care facilities have some protections when it comes to pandemic-era lawsuits, lawyers say. Many states have passed civil immunity laws that protect businesses from COVID-19-related litigation, except in cases of willful, reckless, intentional or grossly negligent misconduct.
“They don’t completely get rid of the opportunity for a plaintiff to sue; they just make it a lot harder,” Idelevich said. “We’re seeing creative lawyers try to get around all of these immunity statutes that are coming out from all of the states.”
There is also the possibility that plaintiffs who successfully challenge immunity in one state could create a domino effect across the country. “It would create enough media buzz around it that I think you’d start seeing copycat lawsuits,” Idelevich said.
Defense lawyers are also claiming the Public Readiness and Emergency Preparedness Act, known as the PREP Act, which offers immunity to liability for COVID-19 countermeasures, covers all COVID-19 lawsuits at long-term care facilities, but courts so far have disagreed, Stahle said. In those cases, lawsuits that were sent to federal court were remanded back to state courts.
“It’s all in flux,” she said.
Trying to obtain immunity through the PREP Act puts cases “in limbo” and delays the process for getting families answers, Richardson said.
Families “want to hold the nursing home accountable for what errors and mistakes they’ve caused. They also want to know what happened,” Richardson said.
Because long-term care facilities have been closed to visitors to prevent the spread of COVID, family members are not able see their loved ones and often aren’t able to intervene until things seem severe, Stahle said. In Missouri, where Stahle practices, calls to the state’s elder abuse hotline are down from the previous year.
Never in her career has Stahle seen so many severe lawsuits involving nursing homes than in the past year. Her firm alone is handling fatal cases unrelated to COVID-19 where a resident allegedly drowned in the bathtub, a resident’s wound became infested with maggots and a resident died from extreme dehydration.
“We are seeing neglect like never before,” Stahle said. “You’re getting these severe cases all at the same time.”
The American Health Care Association and National Center for Assisted Living and some of its state affiliates have “advocated for reasonable, limited liability protections that defend staff and providers for their good faith efforts during this challenging time.”
“We understand that loved ones are grieving and looking for answers, but this is a vicious virus and an unprecedented public health crisis,” AHCA/NCAL said in a prepared statement. “Caregivers are doing everything they can, often with limited resources and ever-changing information. Providers or individual healthcare workers who were following government guidance should not be held responsible for their good faith efforts during this once-in-a-century pandemic.
“Long term care providers are already facing a financial crisis due to COVID. Compounded with an excessive litigation environment, thousands of long-term care facilities would be forced to close their doors, in turn, displacing tens of thousands of vulnerable residents and limiting access to critical services for our nation’s seniors.”