Q: Do long-term care facilities have liability protections from lawsuits related to COVID-19 and are those protections sufficient?
A: According to the National Consumer Voice, 38 states have introduced emergency orders or enacted laws to immunize healthcare companies and providers from liability for COVID-19 related injuries and deaths.
Early on, these protections were seen as a reasonable way to address long-term care providers’ concerns when little was known about the disease and the proper methods for decreasing exposure risk. As deaths and infections grew, family members of deceased and infected residents began to file lawsuits against the facilities, including management and owners.
Generally, the statutes and emergency orders confer protections against civil tort liability theories at the state level where most of the claims are filed. On the federal level, the Public Readiness and Emergency Preparedness, or PREP, Act provides some immunity to healthcare providers.
It is important to note that these protections are not without limits. There are exceptions for gross negligence as well as intentional or reckless conduct. One can easily imagine plaintiffs’ lawyers will look to invoke gross negligence and intentional misconduct by arguing that infections and deaths from COVID-19 were caused by or exacerbated by issues like understaffing.
But gross negligence and intentional conduct represent high bars for plaintiffs to clear to maintain the lawsuit. Immunity conferred by statute is much more likely to withstand the inevitable constitutional challenges that will be brought by the plaintiffs’ bar.
However, immunity granted by executive orders from governors may be more susceptible to constitutional challenges.
From the November 2021 Issue of McKnight's Long-Term Care News
