Legal immunity for nursing homes?

One of the first critical hotspots of COVID-19 in the country wound up being in Washington state and it was at a nursing home. But that wouldn’t be the last one by a long shot. Since then, nursing homes around the country have been ravaged by the virus for a number of reasons, some obvious and others less so. Now associations representing these nursing homes for the elderly are pressuring state governments to approve some sort of legal immunity from civil suits brought against them by families of their residents. The response to such requests has been mixed, to say the least. (NBC News)

As the COVID-19 death toll at nursing homes climbs to nearly 12,000, the nursing home industry is pushing states to provide immunity from lawsuits to the owners and employees of the nation’s 15,600 nursing homes.

So far at least six states have provided explicit immunity from coronavirus lawsuits for nursing homes, and six more have granted some form of immunity to health care providers, which legal experts say could likely be interpreted to include nursing homes.

Patient advocates worry that nursing homes accused of extreme neglect could avoid liability.

As I suggested above, the question of how to deal with nursing homes during the pandemic is a complicated one. At first glance, it’s easy to have some sympathy for the staff and management of these facilities as well as the residents. They specialize in providing permanent care to people who are classified as the most at risk for the worst outcomes if they become infected. Residents are uniformly up in retirement age, the bracket accounting for the greatest number of COVID-19 deaths. And they almost all tend to have underlying health issues complicating their situations further. Few people go into a nursing home because the didn’t feel like going golfing with their kids and grandkids every day.

But at the same time, their risk factors can be higher. Nursing homes are not hospitals and they’re not hotels. They are something in between. Medical care is almost always provided, but they’re not regulated the same way hospitals are and the level of care is frequently not as good. Also, there are unscrupulous actors in the nursing home profession. The NBC News article linked above is full of horror stories from people whose loved ones were abused or put in harm’s way.

With all that in mind, blanket immunity should be out of the question. If there is abuse or neglect going on, these facilities still have to be held accountable. But perhaps some form of limited immunity, only applying to patients who were inadvertently exposed to the virus in unforeseen ways might be considered. Further, there are nursing homes that were trying to do the right thing but had their hands tied by the government.

In New York State, Governor Andrew Cuomo issued an executive order saying nursing homes were required to accept patients back even if they tested positive for the virus. This has led to yet another spike in cases and more deaths in nursing homes in the Empire State. If the families who lost loved ones to the virus in these New York facilities want to sue someone, perhaps they should be allowed to sue the Governor and have the state grant some limited immunity to the nursing homes that were forced to take high-risk, infected patients when they lacked the critical care equipment and facilities to safely deal with them.

All of these factors should be taken into consideration. There may be cases where some level of immunity for deaths under specific circumstances could be granted. But rushing blindly into some sort of blanket immunity for the entire industry would leave the system open to horrendous abuse.

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