Even before the pandemic, nursing homes benefited from strong legal protection. Proponents of the facility’s residents, who argue that Congress did not want to ensure such comprehensive immunity, fear that efforts to hold nursing homes accountable for what they consider preventable deaths from Covid will be virtually impossible if the courts take a broad view to have protection for the new.
“There were bad actors out there. These providers need to be held accountable, “said David Grabowski, a Harvard Medical School professor who studies the long-term care industry. “I think it’s important to keep these two concepts in mind at the same time: in the vast majority of cases, nursing homes weren’t necessarily to blame, but if they did, I wouldn’t give them immunity.”
Dozens of these nursing homes, facing unlawful death lawsuits, often running into millions of dollars, are urging judges to move litigation from state courts to federal courts, where they can invoke the new federal liability protection and potentially avoid massive payouts. In statements to POLITICO, leading nursing home trade associations argued that facilities were working hard to protect their vulnerable populations with the limited tools and information at their disposal.
In the past few weeks, a federal judge in California found that a nursing home was covered by federal liability protection, and another in Louisiana agreed to consider a similar application. While most of the lawsuits are pending, judges have denied nursing homes’ requests to relocate in at least 30 other cases. But even if the courts have ruled against nursing homes, legal experts say appeals could drag the cases out for months or even years and discourage others from filing lawsuits.
Heidi Li Feldman, a law professor at Georgetown University who is closely monitoring the lawsuits, said the nursing homes’ legal strategy is to “throw a kind of hail at Mary.”
“So why bother throwing an Ave Maria? You might win, but you extend the game – and extending the game is good because the longer you don’t have to pay any money the better and you discourage suits, ”she said.
Nursing home residents and workers hardest hit by the virus have caused over 132,000 coronavirus deaths – over 20 percent of the death toll in the country despite making up less than 1 percent of the population. Cases and deaths at the facilities have fallen since the winter after a robust vaccination campaign.
Many of the unlawful death lawsuits accuse companies of not providing enough masks or protective equipment, not enforcing security measures to prevent the virus from spreading, or withholding a Covid-19 diagnosis from a resident of the family Process database maintained by the law firm Hunton Andrews Kurth.
Nursing homes had long complained that at the beginning of the pandemic, the federal government was not quickly keeping its promises to provide protective equipment such as masks and robes, exposing residents and employees to the virus. The largest nursing home lobby in the country claims that state and federal guidelines on testing and PPE have often conflicted and been too slow, which the organization said it did “almost impossible” for institutions that follow constantly evolving best practices.
“The public health response has left them without the necessary resources or clear, precise guidelines to stop the virus,” the American Health Care Association said in a statement. “It is absolutely important to be protected from undue lawsuits when employees are acting in good faith.”
Federal nursing homes have sought to invoke a 2005 law, the Public Preparedness and Emergency Preparedness Act, which was passed in response to threats from bio-terrorism like anthrax and infectious diseases like avian flu. This law, known as the Prep Act, protected vaccine and drug manufacturers from legal liability in urgent circumstances in order to incentivize the rapid development of medical countermeasures.
Last spring, Congress extended liability coverage to include respiratory protective devices such as N95 masks, which have been in short supply throughout the pandemic.
It was up to Trump’s health department to set out how liability protection should work in real life, including cases of life and death due to alleged negligence.
The Department of Health and Human Services Legal Department has issued guides and advice throughout the pandemic. And as more and more nursing homes in court sought protection from the Prep Act, top Trumps HHS attorney Robert Charrow issued a comprehensive legal advisory in January.
The law, as interpreted, essentially covers decisions by nursing home operators that have been taken to administer or withhold vaccination doses, protective equipment, or other measures to control the spread of viruses. The opinion makes it clear that nursing homes and other institutions should maintain this immunity as long as they give reasonable consideration to virus reduction measures, whether or not they have actually been implemented. Only those who completely disregard such measures would not be covered by liability protection, it said.
Charrow declined to comment on this story.
This HHS statement has since become a central part of the legal strategy for many nursing homes campaigning for immunity. And while many federal judges have so far dismissed nursing home arguments, trial attorneys, attorneys, and other experts say the strategy is to expand litigation through appeals.
“It certainly slows things down,” said Adam Pulver, an attorney for the Public Citizen consumer group, which has been advocating family members against nursing homes in several cases. “Some of these cases have already gone back and forth from the state court to the federal court several times.”
Rima Badawiya, a nursing home attorney whose law firm Lewis Brisbois has quoted the Prep Act on about 50 cases, said the HHS statement was an important safeguard for an industry feared a wave of unfair lawsuits.
“The healthcare industry, and the long-term care industry in particular, will be adversely affected if this type of litigation is allowed to continue,” she said.
However, Anne Marie Murphy of the Cotchett Pitre & McCarthy law firm said the allegations that usually make it to court are “particularly dire situations.” She said her company had made dozens of applications to represent families of Covid victims, but only accepted two cases.
Plaintiffs who cannot assert their liability claims in court due to the Preparation Act have another option. You could seek compensation from a government fund run by a small HHS agency called the Health Resources and Services Administration. However, the chances of success are slim and the payout would be less – and it would be the taxpayers, not the nursing homes, who would pay the bill. The agency had received 50 complaints last month alleging that nursing homes caused death or damage due to poor infection control measures from Covid.
Some consumer groups and legal experts are calling on the Biden administration to revoke or limit the previous administration’s guidelines on liability protection.
A spokesman for HHS said the department is reviewing their law firm’s guidelines to see if additional guidance or clarification is needed.