As of July 30, 2020, at least 62,000 residents and employees of nursing homes and long-term care facilities have died in the United States as a result of the COVID-19 pandemic and over 300,000 more have been infected with the coronavirus.1 Overall, nursing home and long-term care facility deaths account for approximately 41% of COVID-19 deaths in the United States, as the fatality rate in these facilities is significantly higher than the national average.2
The COVID-19 pandemic has been especially devastating to nursing homes in part because of residents’ advanced age and increased susceptibility to the virus.3 As the number of COVID-19 deaths in nursing homes grew, family members of deceased, and some infected residents, began to file lawsuits against the facilities, their management and owners, and their staff. One of the first and most prominent lawsuits was filed against Holyoke Soldiers’ Home in Massachusetts.4
LIABILITY SHIELDS FOR NURSING HOMES AND LONG-TERM CARE FACILITIES
In the early days of the COVID-19 pandemic, wanting to allay concerns of healthcare providers and assure that persons affected by the virus would receive needed treatment, many states enacted liability shields for healthcare providers, including nursing homes. These shields protect nursing homes from civil liability for COVID-19 related deaths and injuries. In order to avail itself of such immunity, a nursing home must prove its acts or omissions that caused the harm at issue occurred in the course of providing healthcare services in support of a state’s COVID-19 response. Many immunity orders and laws require good faith on the part of the nursing home and only cover conduct occurring while the state was in a declared state of emergency.
To date, more than half of all states have enacted some form of liability safeguard for nursing homes and other long-term care facilities.5 Many states conferred these liability shields via executive order, including Connecticut and Pennsylvania, in part due to the exigency and the time needed to enact legislation. Several states, on the other hand, enacted immunity laws via legislation.6 These states include New York, New Jersey, and Massachusetts. New York granted nursing homes qualified immunity in April through the Emergency or Disaster Treatment Protection Act, which was included in the state’s budget. Few states have extended immunity to cover criminal liability. The federal government has its own immunity grant for health care providers, embodied in the Public Readiness and Emergency Preparedness Act (“PREP Act”).7
Although these immunity grants protect against a wide range of civil tort liability theories, they are not without limits. All of the aforementioned provisions have an exception for gross negligence and intentional or reckless misconduct.8 Several states, including New York, have begun to narrow the scope and duration of immunity for nursing homes, which means it is crucial for facilities to closely monitor the situation and executive/legislative activity.9 New York on August 3 passed a new law narrowing nursing homes’ future legal immunity in a compromise revision to the Emergency or Disaster Treatment Protection Act passed in April.
Several states that experienced a high number of COVID-19 cases and deaths have not yet adopted liability immunity for nursing homes and other healthcare providers and the issue has become controversial and contested. Two states, notably, that have thus far not granted immunity to nursing homes are Florida and California, although the California Supreme Court, in Jarman v. HCR Manorcare, Inc., No. S 241431 (Aug. 17, 2020), construed California’s longstanding Long-Term Care Act to significantly limit statutory liability for regulatory violations over a vigorous COVID-inspired dissent. Family members of nursing home residents who died from COVID-19 in these states are taking advantage of the absence of tort immunity and have commenced lawsuits against nursing homes for personal injury and wrongful death.10
LEGAL CHALLENGES TO LIABILITY SHIELDS
There has been significant debate over the legality of these liability shields, with opponents arguing that they violate the constitutional due process, equal protection and separation of powers doctrines. Legislative bodies in at least 23 states have proposed legislation to limit the power of governors to pass executive orders during the COVID-19 crisis. For example, there is a pending resolution in the New York State Assembly intended to restore legislative checks and balances and guarantee judicial due process by limiting the executive powers of the governor during states of emergency.11
There is also ongoing debate in Congress regarding the scope of healthcare immunity laws. Senate Republicans are pushing for wide-sweeping liability protections while most Senate Democrats prefer a narrower scope of immunity. Senate Majority Leader Mitch McConnell (R-KY) has said the Senate will not pass another COVID-19 relief bill without a liability waiver for businesses, including healthcare providers, encompassed in the bill.12
Not all lawsuits against nursing homes directly challenge their immunity from civil liability. Some complaints instead rely on the gross negligence exception or allege a federal constitutional violation (i.e. deprivation of civil rights). In New York, where the virus took an early and severe toll, several lawsuits have been filed against nursing homes, with plaintiffs primarily alleging gross negligence.13 Some asserted grounds of alleged gross negligence include severe shortage of staff, lack of adequate training in infection control, lack of adequate personal protective equipment (PPE) and testing, and failure to communicate with families of residents or the state.
Some plaintiffs have argued alternate theories of liability and have claimed that nursing homes violated the Americans with Disabilities Act (“ADA”) or Rehabilitation Act, or violated the Nuremberg Code,14 or failed to comply with state and/or federal healthcare laws. Plaintiffs in some cases may be able to sue the state, if the nursing home is government operated.15 Numerous lawsuits have been filed as class action suits, with the class consisting of all residents of a particular nursing home who were injured or died as a result of the COVID-19 outbreak.16
ARGUMENTS IN SUPPORT OF LIABILITY SHIELDS
Proponents of state-granted immunity look to state constitutions, specifically their grants of police power to governors, for support. Governors have authority to pass executive orders to protect public health and safety once a state of emergency has been declared, pursuant to the police power granted to them by their respective state constitutions.17
From a pragmatic perspective, supporters argue that these immunity grants are necessary to protect nursing homes from overwhelming amounts of litigation stemming from a widespread outbreak that was beyond their control. The intent of liability shields was to protect nursing homes that put in a good faith effort to comply with state and federal healthcare guidelines but were unable to prevent transmission of the virus within their walls due to no fault of their own (i.e., transmission by asymptomatic carriers, lack of adequate PPE or availability of testing).
Liability shields for nursing homes may be more likely to withstand constitutional challenges if they were enacted by state legislatures, as opposed to via gubernatorial executive order. Liability immunity protections may also be more likely to survive judicial scrutiny to the extent they are relatively narrow in scope and limited in duration, which is not to say that even broad immunity from liability will not be upheld given the extraordinary nature of the public health emergency.
NURSING HOME DEFENSES AGAINST LIABILITY FOR COVID-19 DEATHS
Nursing homes are in a strong position to challenge negligence lawsuits, as in many cases they have been granted immunity by both state governments and the federal PREP Act. To sustain an action against a nursing home that has been granted immunity (at least in the absence of invalidating the immunity grant), a plaintiff must prove the facility was either grossly negligent or intentionally (or possibly recklessly) engaged in misconduct. This is a high bar for plaintiffs to surmount under normal circumstances, and, to date, no court has ruled on what might constitute gross negligence in the context of the COVID-19 pandemic. Further, no court to date has even ruled on the applicable standard of due care for nursing homes in this context.
In states without immunity, nursing homes can defend themselves against negligence lawsuits by asserting their procedures were in accordance with state laws and public health directives related to COVID-19, or industry standards. Nursing homes may also argue contributory or comparative negligence to reduce the amount of damages owed to plaintiffs. One nursing home at the center of a lawsuit invoked the “Act of God” defense against tort liability.18 If the nursing home is operated by the federal or state government, it may in some cases assert sovereign immunity as a defense, which means the governmental body must consent to being sued, or damages caps.19
Nursing homes and other long-term care facilities should closely monitor changing state and federal guidelines and take all steps necessary to ensure compliance, as this will severely mitigate the risk of holding the facility liable for gross negligence. Management should be aware of litigation filed against other facilities in the state, and whether plaintiffs are attempting to overcome the state liability shield or argue an alternate theory of liability. As all the relevant lawsuits are still in their early phases, there remains much uncertainty regarding what sort of conduct will be covered by liability shields and what will constitute exempted gross negligence.
The authors wish to thank Goodwin 2020 Summer Clerk Maria Massimo for her work on this Client Alert.
1 Over 16,000 facilities across the United States reported COVID-19 deaths, with the highest number of deaths occurring in facilities in New York, New Jersey, and Massachusetts. https://www.nytimes.com/interactive/2020/us/coronavirus-nursing-homes.html.
4 Family members of deceased residents filed a civil rights class action suit, alleging the state failed to protect residents of the facility from harm and/or failed to provide them with a safe environment and adequate medical care.
6 In some cases, states initially granted immunity via executive order, and then the State Legislature passed a law codifying this immunity.
7 The PREP Act authorizes the Secretary of Health and Human Services to grant immunity to certain health care providers against claims arising out of conduct in response to the COVID-19 outbreak, if they are “covered countermeasures” within the meaning of the law.
https://www.phe.gov/Preparedness/legal/prepact/Pages/default.aspx. Though the federal government has authority to enact liability shields for nursing homes, the responsibility for enacting such shields falls primarily on the states.
8 The language of these exceptions varies, with some states including “reckless, wanton, or willful” misconduct. Most liability shields, except for three states, do not protect nursing homes against criminal liability.
9 This legislation limits the scope of the state’s liability shield to only protect health care professionals who are “providing actual care and treatment related to COVID-19.” https://www.bloomberglaw.com/product/blaw/document/X9908RC8000000.
10 In California, the family of a former nursing home resident who died of COVID-19 filed a wrongful death suit against Glendale Nursing Home. https://www.latimes.com/california/story/2020-05-22/glendale-nursing-home-sued-after-resident-contracts-covid-19-and-dies. In Florida, soon-to-be plaintiffs have filed multiple letters of intent to sue nursing homes, likely alleging gross negligence and wrongful death.
12 Senate Republicans recently unveiled the Safe to Work Act, which would make it more difficult for employees and customers to sue businesses for exposing them to COVID-19. This bill would also expand liability immunity for health care providers and raise the pleading burden for plaintiffs alleging COVID-19-related negligence. https://www.cornyn.senate.gov/sites/default/files/SAFETOWORKAct.pdf.
13 Plaintiffs also state a claim for negligence, but do not make any reference to New York’s liability shield for nursing homes. https://www.law360.com/articles/1298194/ny-nursing-home-virus-immunity-shrinks-as-first-suits-filed.
14 Plaintiffs may allege nursing home staff subjected residents to “unethical biomedical experimentation” by administering various medications or antibiotics intended to mitigate COVID-19 outbreaks in the facilities.
15 This is precisely what happened in the case of the Holyoke Soldiers’ Home—plaintiffs filed suit against Massachusetts in federal court claiming the state failed to provide residents with their civil rights. https://www.law360.com/articles/1293124?scroll=1&related=1.
16 In Pennsylvania, a class of plaintiffs sued a long-term care facility alleging violations of numerous federal laws, such as the ADA, and even one international human rights law. Gill et al. v. PA Dep’t of Health (E.D. P.A. 2020), case no. 2:20-cv-02038. Similarly, a class of plaintiffs in New York filed suit against Queens Adult Care Center alleging violations of the ADA and Rehabilitation Act. Schoengood et al. v. Hofgur LLC b/d/a Queens Adult Care Ctr. and Gefen Senior Group (E.D.N.Y. 2020), case no. 1:20-cv-02022. In New Jersey, family members of deceased residents of Andover Subacute Rehabilitation Center filed suit against the facility, claiming gross negligence and wrongful death. Estate of Joseph Maglioli v. Andover Subacute Rehabilitation Ctr. (Superior Court of New Jersey, Sussex County 2020), case no. SSX-L-000176-20.
18 Morin v. Life Care Centers of America (Superior Court of Washington, King County 2020), case no. 20-2-07689-9 SEA.
19 In order to invoke this defense, the state must have previously extended sovereign immunity to the nursing home industry.