COVID-19 Immunity Laws Lead to Exemption for Nursing Home Neglect

Posted on February 19, 2021 by bermanstaff

Lisa Howze and her three sisters have filed a lawsuit against Treyburn Rehabilitation Center of North Carolina after the death of their mother, Palestine Howze, in April of 2020. However, it is unclear whether this suit can proceed due to the legal immunity that North Carolina, in addition to 30 other states, has granted to nursing homes during the COVID-19 pandemic. This comes after the strong demand from nursing homes to shield them from lawsuits as a result of the ravaging impact the virus had on the elderly within these communities.

This immunity, however, creates problems for families like the Howzes, who argue that because their mother’s death was not related to the Coronavirus, they should be entitled to legally holding Treyburn accountable. Palestine Howze had developed a pressure ulcer, more commonly known as a bed sore, that flared up in December of 2018. As her condition worsened, staff assured Lisa Howze and her sisters that they could handle the situation after repeated requests to take her to the emergency room following an infection of her bed sore. Upon the development of her infection Palestine Howze was urged to visit a hospital to receive antibiotics and see specialists in wound care. Treyburn again denied her this care, blaming emergency room crowding due to the coronavirus as a reason to keep her under the supervision of the facility.

It was not until May that North Carolina passed an all-encompassing measure granting protection to long-term care facilities from lawsuits. The bill was made retroactive to March 10-- only weeks before Palestine Howze’s death. The immunity law will remain until the pandemic is over, and with very rare exceptions it will shield liability from nursing homes and other care facilities for an extended amount of time.

COVID-19’S IMPACT ON NURSING HOMES

According to the data collected from the New York Times and the CDC, 36% of all United States coronavirus deaths are from residents and employees of nursing homes and long-term care facilities for older adults. Although accounting for over one-third of deaths, this population only represents 5% of all cases in the United States, causing individuals in care facilities to have disproportionately greater chances of fatality than others across the nation.

Infection-control deficiencies are a longstanding issue within these facilities that predates the pandemic with over 8 out of 10 nursing homes having been cited for infection control problems before 2020. The longstanding staffing and infection problems of the industry have been well-documented, which was furthermore displayed through the inability of facilities in the United States to implement basic protocols in slowing the spread of infection amongst residents.

THE FUTURE OF NURSING HOME IMMUNITY

As long as nursing homes continue to blame their problems on being short-staffed and unequipped to handle the pandemic, legislation passed in these 30 states (and potentially more) will offer them a safeguard against being held accountable. Lifting liability for injuries and death amongst the pandemic prevents families from getting answers about what happened to their loved ones, granting nursing homes the opportunity to avoid being sued for negligence or wrongful death if it involves the coronavirus.

Although California has not granted immunity to care facilities, the state has still taken measures to relax standards for factors such as personnel and facility capacity. At a federal level, Congressional Republicans also fought early on for a national immunity law, but ultimately dropped it to come to an agreement on a coronavirus relief package. However, there has been an increase in the past few months of nursing homes invoking the Public Readiness and Emergency Preparedness (PREP) Act to claim immunity from coronavirus-related suits.

The PREP Act does not apply to instances of serious injury or death caused by “willful misconduct,” but pleading the Act has allowed defendants to move from state to federal court, buying them more time. No judge has yet to rule in favor of nursing homes, but in recent months the PREP Act has been applied in situations where organizations, while trying to comply with health regulations, failed to act against the pandemic, which is an allegation in most nursing home lawsuits. As the pandemic continues to progress, the PREP Act continues to change as the Department of Health and Human Services adds amendments and guidance to broaden the reach of the law.

Pandemic aside, nursing homes are supposed to serve as a place for sanctuary and care for our elderly. No facility should be immune from legal responsibility for the mistreatment or neglect of our most vulnerable population. If you or your loved one has suffered from nursing home abuse and wish to pursue a case, you may have legal options for seeking justice. Our dedicated team of attorneys at Berman & Riedel, LLP can offer the experience and skill necessary to provide you with sound advice on how to protect your legal rights.


About Berman & Riedel, LLP firm managing partner attorney William M. Berman:

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Attorney William M. Berman focuses his practice in the areas of catastrophic personal injury, wrongful death and elder abuse and neglect. Strictly a plaintiffs’ dedicated firm, he never represents insurance companies in the defense of claims. Mr. Berman’s firm remains staunchly committed to helping those who have suffered serious injury or loss due the negligence, intentional misconduct or wrongful acts of others. Mr. Berman has grown his firm to what is considered one of the largest and most successful elder abuse/neglect practices within California. Through his continued successes in handling claims involving nursing home and elder abuse and neglect, Mr. Berman remains a prominent figure in advocating on behalf of this vulnerable class of citizens.
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