Nursing homes, health care providers seek protection from COVID-19 lawsuits

Nursing Home Investigations

AUSTIN (KXAN) — A new lawsuit has been filed against a Central Texas long-term care facility, claiming wrongdoing in their response during the coronavirus pandemic.

In court documents filed against an assisted living home in La Grange, a former employee claims she wasn’t made aware of COVID-19 testing being done on some residents and was not given training on the correct precautions to take in the facility.

She’s arguing she was fired after reporting coronavirus-related incidents. Meanwhile, the lawsuit states this employee was instead informed the reasons for her termination were two complaints about her.

This legal action comes just a month after the family of Maurice Dotson, a certified nursing aide in an Austin nursing home who died after contracting the virus, filed a wrongful death lawsuit against Dotson’s employer.

MORE: Family sues Austin nursing home in worker’s death

As the death toll rises in nursing homes across the nation, the long-term care industry has begun seeking immunity against lawsuits related to the pandemic.

So far, 25 states have granted “limited liability protections” from legal action for healthcare workers and health care facilities battling the COVID-19 outbreak, either through executive orders or state laws, according to data put together by the Texas Alliance For Patient Access.

Texas is not one of those states.

“We are in this ‘no man’s land’ of standard of care — doing the best we can to navigate this difficult circumstance, which affects patients and affects providers,” Texas Alliance For Patient Access Executive Director Jon Opelt said.

His organization is one of seven Texas health care organizations asking Governor Greg Abbott to issue an executive order granting immunity for providers.

A data set provided by the Texas Alliance For Patient Access showing which states have ordered some type of limited liability protection or immunity for health care providers. The data also shows many hospitalizations n the state has had as of June 14, 2020.

They sent a letter on April 3 that read: “Despite the good intentions and exhaustive efforts of these physicians and health care providers to care for Texas’ patients, many attorneys are already advertising for tort litigation involving health care in response to COVID-19. Texas’ physicians and health care providers deserve better.”

Opelt said health care providers are putting themselves at risk — sacrificing, in some cases, their own health and now having to worry about being sued.

Their letter stated, “This threat risks deterring our physicians and health care providers from providing needed, urgent patient care.”

‘There’s going to be no accountability for bad behavior’

AARP is advocating at the federal level against this type of immunity, arguing that lawsuits are a way families and employees can hold the nursing home industry accountable.

“People have reported to us they have gone to window visits and seen their mother emaciated, hadn’t eaten for a week, lying naked on the floor,” Bill Sweeney, AARP’s Senior Vice President of Government Affairs said. “Then, we are going to give them immunity from lawsuits too? There’s going to be no accountability at all for bad behavior that led to the deaths of 50,000 Americans.”

He noted that many nursing homes are doing everything they can to protect residents, but said with limited inspections inside these homes due to the virus, lawsuits are necessary to hold any “bad actors” accountable.

Opelt pointed out, the seven organizations who wrote the letter are not asking for any willful negligence, intentional harm, or conscience indifference to the safety or welfare of the patient to be protected.

‘Without fear of reprisal’

Lauren Claffey, a spokesperson for the Safe Senior Care Initiative, agreed — saying nursing homes and assisted living facilities employ front-line workers, just like other health care providers.

“These long term care facilities are important parts of the state’s healthcare system, and were required to care for patients being discharged from hospitals even when resources were scarce and testing was difficult to acquire,” Claffey said.

She also noted the “continually changing guidance” homes had to follow, from federal agencies like the Centers for Disease Control and Prevention, the Centers for Medicare and Medicaid Services, along with state and local regulators.

“The Covid-19 pandemic has created an unprecedented public health emergency,” she said.

Their group is calling for liability protections specific to this pandemic, so that they can continue to provide care “without fear of reprisal.”

“Long term care workers and centers are on the front line of the pandemic response, risking their own lives to care for and protect their residents, employees, families, and the general public from the virus. They are members of the community who care deeply about the vulnerable population in their care,” she said.

‘These corporations are afraid’

Maurice Dotson worked as a certified nursing assistant for more than two decades. In April, he contracted COVID-19, and later died. Now, his family is suing West Oaks Nursing and Rehabilitation, arguing they could have done more to protect him.

MORE: ‘He gave his life’: Friends remember nursing assistant’s dedication, despite COVID-19 risks

Lawyers for Dotson’s family told KXAN, historically, the push for health care immunity has little to do with the workers themselves.

“What it is, is corporations looking for immunity,” attorney Kathleen Kearney said.

Co-counsel Quentin Brogdon added, “These corporations are afraid, apparently, of standing in front of a jury of the community’s peers, a jury of the resident’s peers, a jury of the workers’ peers.”

Kearney is also a registered nurse. She asserted nursing homes should have been prepared far earlier than they were, in many cases.

“Healthcare facilities currently are claiming that COVID-19 is unprecedented,” she said. “Respiratory illness is not unprecedented. Infection control is not unprecedented. Being able to manage respiratory illness in a nursing facility is not unprecedented — this isn’t new.”

She and Brogdon argue homes, like the one Dotson worked for, should have done more to protect resident’s and workers — like stock up on personal protective gear or fight for tests.

“A the beginning of 2020, you knew to a certainty that a deadly new virus, COVID-19, was going to be banging on your door,” Brogdon said. “Were you going to invite it in to stalk your residents like a hungry tiger, or were you going to bar the door?”

Opelt told KXAN shortages of PPE or testing access are often variables out of health care providers’ control.

Their letter states, “In some situations, they are facing shortages of life-saving equipment while trying to render care to a patient population that exceeds their capacity. In other situations, to fill personnel shortages, they are being asked to provide health care services that, while within the scope of their licenses or other authorizations, are outside of their facility’s historical credentialing policies or outside their chosen specialty practice.”

Yet, Sweeney said the AARP was disappointed to see some people in the industry lobbying for legal immunity far before they ever pressed the federal government for much-needed resources.

“While we knew there was a problem brewing, where we didn’t have the PPE and the testing, some of the big nursing home chains were actually spending their time lobbying Congress and lobbying state legislators for immunity from lawsuits, rather than lobbying for the PPE or the testing they needed to take care of their residents.”

Sweeney said simply, “We think it’s outrageous.”

Copyright 2020 Nexstar Broadcasting, Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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