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| A patient is loaded into the back of an ambulance by emergency medical workers outside Cobble Hill Health Center |
NEW YORK (AP) —
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.
Now 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.
“As
our care providers make these difficult decisions, they need to know
they will not be prosecuted or persecuted,” read a letter sent this
month from several major hospital and nursing home groups to their next
big goal, California, where Gov. Gavin Newsom has yet to make a
decision. Other states in their sights include Florida, Pennsylvania and
Missouri.
Watchdogs,
patient advocates and lawyers argue that immunity orders are misguided.
At a time when the crisis is laying bare such chronic industry problems
as staffing shortages and poor infection control, they say legal
liability is the last safety net to keep facilities accountable.
They
also contend nursing homes are taking advantage of the crisis to
protect their bottom lines. Almost 70% of the nation’s more than 15,000
nursing homes are run by for-profit companies, and hundreds have been
bought and sold in recent years by private-equity firms.
“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,’” said Mike Dark, an attorney for California
Advocates for Nursing Home Reform.
“This
has very little to do with the hard work being done by health care
providers,” he said, “and everything to do with protecting the financial
interests of these big operators.”
Nowhere
have the industry’s efforts played out more starkly than in New York,
which has about a fifth of the nation’s known nursing home and long-term
care deaths and has had at least seven facilities with outbreaks of 40
deaths or more, including one home in Manhattan that reported 98.
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.
While
the law covering both hospital and nursing care workers doesn’t cover
intentional misconduct, gross negligence and other such acts, it makes
clear those exceptions don’t include “decisions resulting from a
resource or staffing shortage.”
Cuomo’s
administration said the measure was a necessary part of getting the
state’s entire health care apparatus to work together to respond to the
crisis.
“It was a
decision made on the merits to help ensure we had every available
resource to save lives,” said Rich Azzopardi, a senior advisor to Cuomo.
“Suggesting any other motivation is simply grotesque.”
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.
Other
states that have emergency immunity measures are Alabama, Arizona,
Connecticut, Georgia, Illinois, Kentucky, Massachusetts; Michigan,
Mississippi, New Jersey, Nevada, Rhode Island, Vermont and Wisconsin.
Their
provisions vary but largely apply to injuries, deaths and care
decisions, sometimes even to property damage. But there are limitations:
Most make exceptions for gross negligence and willful misconduct, and
they generally apply only during the emergency.
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.”
Among
the situations for which lawyers say nursing homes should be held to
account: Homes that flouted federal guidelines to screen workers, cut
off visitations and end group activities; those that failed to inform
residents and relatives of an outbreak; those that disregarded test
results; and homes like one in California, where at least a dozen
employees did not show up for work for two straight days, prompting residents to be evacuated.
“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.”
While
the federal government has yet to release numbers on how the
coronavirus has ravaged the industry, The Associated Press has been
keeping its own tally based on state health departments and media
reports, finding 20,058 deaths in nursing homes and long-term care
facilities nationwide.
All
the new immunity laws notwithstanding, there is a potential wave of
lawsuits coming. Illinois lawyer Steven Levin said he’s received dozens
of calls from people considering suing homes over the outbreak. Florida
lawyer Michael Brevda said his firm gets 10 to 20 calls a day. And a
lawyer in Massachusetts said he’s gotten maybe 70 from families with
relatives at homes struck by the virus.
“We’re
getting inundated,” said David Hoey, whose practice near Boston has
been suing homes for 25 years. “They’re grieving and they’re confused. …
‘My loved one just died from COVID. What can I do?’”
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.
Full Article & Source:
Faced with 20,000 dead, care homes seek shield from lawsuits
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