Nursing homes are on the front line of the COVID-19 pandemic, with patients in long-term care facilities reportedly comprising one-third of the virus’s fatalities in most states. Though this situation is unprecedented, the pandemic has highlighted problems the industry grappled with long before the novel coronavirus hit. Issues like staff shortages and staff who are poorly-trained and inadequately-supervised have always been problematic. They have just become more exacerbated by the health crisis. This is why families, patient advocates, and personal injury lawyers are alarmed about a wave of requests from the nursing home industry to state governments to free them of “any liability, civil or criminal,” under certain conditions for nursing homes, hospitals, and other facilities.
As USA Today recently reported, The Florida Health Care Association recently sent one such request to Governor Ron DeSantis. The executive director for the Florida nonprofit Families for Better Care characterized the request as “asking for forgiveness in advance.” The FHCA counters that in the midst of a public health crisis, health care workers should be granted the ability to direct their attention and skills to help people – without having to worry about, “being sued for making tough decisions while trying to comply with government directives.”
Our team at The Garvin Injury Law has a great deal of respect for the nursing home employees doing their best to care for the elderly and disabled in a difficult and dangerous situation. The problem our Fort Myers nursing home injury lawyers see with a blanket request for nursing home immunity is that it exaggerates the industry’s vulnerability to frivolous injury lawsuits. At worst, it gives poorly-run facilities an excuse to skimp on care, leaving patients victimized by abuse or neglect with no legal recourse.
Why Nursing Home Requests for Injury Lawsuit Immunity Are Flawed
The reality is COVID-19 could rip through a facility – resulting in numerous deaths – and even without immunity, it is possible the nursing home may not be held liable in a wrongful death or injury lawsuit.
Why? Because established tort law doctrines already consider what is reasonable under the circumstances.
The question of “what is reasonable” will not overlook how taxing a pandemic is to a healthcare facility responsible for providing care to those who are immuno-compromised. What might be negligent under typical circumstances may not be in the midst of a pandemic.
Beyond that, if we are talking about medical negligence (also known as medical malpractice, as outlined in Chapter 766 of Florida Statutes), it is important to understand that health care provider liability depends largely on what similar entities or practitioners would have done in the same situation. As noted in F.S. 766.102, this is referred to as weighing the prevailing professional standard of care, which takes into account “the level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.” This requires expert witness testimony from other similarly situated professionals.
In other words, even nursing homes in poor condition might not be held liable if they are able to show that, during the pandemic, other nursing homes were in similar condition.
Ultimately, what immunity would do, is place good providers who invest in patient care at a disadvantage compared to those willing to cut costs at the expense of patient safety. Already as it stands, the government rarely imposes substantial penalties on nursing homes, even when their actions result in personal injury or wrongful death. Plus, in response to the pandemic, the Centers for Medicare and Medicaid Services have waived key regulation requirements and suspended enforcement actions. Immunity would only protect those willing to cut corners.
If you or a loved one is injured in a nursing home in the greater South Florida area and are interested in discussing an injury lawsuit, contact our injury attorneys at The Garvin Firm at 800.977.7017 for a free initial consultation.
‘A License for Neglect.’ Nursing Homes Are Seeking — and Winning — Immunity Amid the Coronavirus Pandemic, May 14, 2020, By Abigail Abrams, TIME.com