Should nursing homes be immune to COVID lawsuits?

(Ed Kashi/Human Rights Watch via AP)

This is a problem that Congress should have handled long before now, but since they didn’t, it’s showing up at the state level. The issue at hand is whether or not a business – in this case a nursing home in New York State – can be sued because someone died of COVID on the premises or contracted it there and then passed on elsewhere. The plaintiff in the case is Vivian Zayas, whose mother died of COVID last summer after staying for a time at the Our Lady of Consolation nursing home. Standing against her are multiple hospital industry lobby groups. Zayas is demanding accountability from the people who were supposed to be caring for her mother, while hospital and nursing home workers and administrators are describing her mother’s passing as a tragedy brought on by a natural disaster. It’s not difficult to understand either side in this battle, but the implications could be huge depending on how the question is settled. (NY Post)

New York’s powerful hospital groups have taken steps to get a federal COVID-19 lawsuit against a Long Island nursing home tossed — calling it a potentially precedent-setting case that could have damaging, “far-ranging consequences” for the industry.

The Greater New York Hospital Association and NYS Health Care Association filed papers in Brooklyn federal court on Friday challenging the suit brought by Vivian Zayas, whose mom died of coronavirus last year following her stay at Our Lady of Consolation.

Zayas, who sued last August, is seeking to hold the West Islip nursing home liable in her mom’s death, saying it failed to take adequate preventative measures to keep the killer bug from spreading.

Anyone who has lost a parent should be able to sympathize with Vivian Zayas and understand what it is that she’s had to go through. All the sympathy in the world won’t bring back her mom, but we also need to ask ourselves if the tragic nature of this situation adds up to a case of what essentially amounts to malpractice and liability on the part of the nursing home.

There has already been a debate in Congress about providing immunity for employers and businesses against lawsuits brought by the families of patients who may have contracted COVID on their property. So far there has been no action taken. Meanwhile, in New York State, the legislature passed the Emergency or Disaster Treatment Protection Act last spring, only a few months into the pandemic. Signed into law by Governor Cuomo, the bill provided immunity to hospitals and nursing homes against charges of medical malpractice and negligence claims related to the pandemic. But that law was repealed in April of this year.

Since the repeal was not made retroactive, the law presents one large hill for Zayas to climb, but that’s no answer to the literally millions of other potential lawsuits that are waiting in the wings. Her mother fell ill fairly early in the pandemic while we were still trying to figure things out. Many medical facilities were still treating COVID like they would any other infectious outbreak, packing patients in for treatment as best they could. And in the case of nursing homes, the people operating them were under even more pressure because of rules put in place by Andrew Cuomo, forbidding them from turning away COVID patients or even asking for a COVID test prior to admission. (If Ms. Zayas wants to sue someone, she should probably start with the Governor.)

This simply doesn’t sound like a situation where you can establish true liability. Every year we have situations where someone goes to work or who-knows-where and winds up contracting the flu. Some of those people eventually die. But is that the fault of the place where they contracted it? And while we’re on the subject, how can anyone definitively say where and when they came in contact with the virus? COVID was everywhere. Even in the case of Ms. Zayas, sure, there’s a good chance she caught it at the nursing home. But she also might have caught it on the way there. For all we know, her daughter might have been asymptomatic and brought it in herself.

I realize that probably sounds harsh and I apologize for that. But if this lawsuit goes through there will be more than half a million others following it and who knows how many millions of others from people who may have survived COVID but had a serious, negative outcome from it. It’s a virus. It came out of nowhere (though we’re getting a better idea of where that might have been) and tore through the country and the rest of the world like a hurricane. We had no idea what we were dealing with when it started and we’re still learning as we go. Plagues happen and they will happen again in the future, but not every death is a justifiable cause for litigation.