Will Immunity Orders Enacted to Protect Nursing Homes Actually Limit Liability?

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By Abbye E. Alexander and Barbara R. Schabert

As COVID-19 related deaths amongst nursing homes in the United States tops more than 28,000, and continues to rise, it is necessary for nursing homes and other long-term care facilities to be prepared for COVID-19 related lawsuits. These facilities remain under constant pressure to implement the rapidly evolving, and increasingly detailed, protocols currently being issued by the CDC and CMS.  The high potential for COVID-19 related lawsuits has led numerous states to enact legislation and/or issue executive orders affording immunity for healthcare facilities and healthcare professionals providing care during the COVID-19 pandemic. Such immunity orders recognize and acknowledge the difficult tasks healthcare professionals face in navigating the COVID-19 pandemic, including without limitation, staff shortages, inadequate medical supplies, and a lack of personal protective equipment (PPE). 

Currently, twenty-three (23) states have enacted laws or issued executive orders providing protections from lawsuits arising from the pandemic.  Generally, such orders limit civil liability for injury and death allegedly sustained directly resulting from a negligent act or omission by healthcare professionals.  Under these new laws, the healthcare professionals and facilities must still act in good faith; no one is shielded from liability for gross negligence, or intentional criminal conduct.  There is no bar on claims for willful, reckless, criminal misconduct or gross negligence. Most orders specifically mention “good faith” as a requirement for the immunity shield to apply.  

Most of the orders issued pose no limitations on the ability of the state to investigate nursing homes. In fact, CMS has recently issued directives focused on monitoring nursing homes implemented pandemic plans with emphasis on the effectiveness of the nursing homes’ infection control policies and procedures. These heightened standards can lead to civil monetary penalties for failure to comply with infection control protocols, as well as the nursing home losing its
Medicaid certification. 

New York is a major pandemic hotspot, with the center of the outbreak occurring in nursing homes, which have seen more than 5,000 deaths. New York’s immunity order is the country’s most explicit and all-encompassing, providing immunity for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing healthcare services during the COVID-19 pandemic. At the other end is Florida, a state that has not yet issued any immunity order but has been imposing sanctions on nursing homes with COVID-19 outbreaks as a result of gross negligence. These sanctions include prohibiting intake of patients and even closing facilities.

Nursing homes will likely see COVID-19 related lawsuits involving wrongful death and negligence. However, given the unprecedented nature of these expected lawsuits, nursing homes should also expect issues involving the standard of care during a pandemic. The courts will likely examine the updated COVID-19 guidelines, protocols, and regulations issued by federal, state, and local agencies.  In anticipation of the forthcoming lawsuits, facilities should apply all reasonable precautions and protections to limit any potential exposure. Facilities need to be aware of its state’s applicable immunity orders and legislation. It is reasonable to expect future litigation related to the scope of these protections when the language is ambiguous.   

Nursing homes should maintain complete documentation as to all infection control policies and procedures, efforts to adhere to and staff training, and records as to necessary updates.  Facilities should document implementation of, and efforts to comply with, updated CDC and CMC guidelines and regulations, include, without limitation: (1) policies and procedures for investigating, controlling and preventing the spread of COVID-19; (2) infection control precautions such as hand hygiene, disinfection, and isolation of sick residents; (3) staff education on infection control protocols; (4) monitoring staff compliance with infection control protocols; (5) identification of signs of infection in residents and staff and related isolation protocols; and (6) notification to state and local health departments, as well as CMS of the existence and extent of COVID-19 cases.   

Nursing homes should reevaluate and reassess procedures frequently based on COVID-19 released data, testing and other clinical information. It is important to remain cognizant of trends for COVID-19 and have a plan to implement additional procedures if COVID-19 infections begin to surge. 

Abbye E. Alexander is a partner in the Orlando office of Kaufman Dolowich & Voluck LLP and Chair of the firm’s Managed Care Practice Group. She focuses her practice on issues affecting national and local businesses in various practice areas including civil litigation, torts and complex business litigation.

Barbara R. Schabert is an associate at Kaufman Dolowich & Voluck with extensive experience representing nursing homes and other long-term care facilities in disputes involving medical malpractice, medical negligence, wrongful death, professional licensing, labor and employment, and other complex commercial litigation issues.

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