NC law now blocks most lawsuits over health care during the COVID-19 crisis. Did it go too far?
Without a vaccine, no one is immune from infection by the new coronavirus., but nursing homes, hospitals and other health care facilities have obtained the next best thing – immunity from lawsuits related to the crisis.
The Senate bill setting out the state’s response to the pandemic includes a section that provides broad legal immunity to both health care workers and health care facilities during the crisis. The need for it is understandable given the pressures on health care workers, but its broadness protects far more than them. Nursing home owners and hospital executives have fallen in behind the people in scrubs to be shielded from lawsuits.
The immunity is particularly troubling regarding nursing homes. The North Carolina Department of Health and Human Services reports that the state has five nursing homes with at least 100 COVID-19 cases, and nursing home deaths represent about half of the state’s deaths from the disease. The numbers reflect the vulnerability of nursing home residents, but they can also point to homes where owners have neglected to provide sufficient staffing or rigorously follow infection prevention protocols.
Senate bill 704, signed into law by Gov. Cooper on Monday, says that immunity will not apply in cases in which a health facility’s actions involve “gross negligence.” But that exemption is largely nullified by the law’s further stipulation that “acts, omissions, or decisions resulting from a resource or staffing shortage shall not be considered to be gross negligence.”
In other words, nursing homes that cut corners on staffing and resources that help prevent infection are off the hook.
Stephen Gugenheim, a Raleigh attorney who specializes in lawsuits against nursing homes, said the immunity takes away the rights of those who think their relative died because of nursing home negligence.
“We’re fielding call after call from individuals who had a loved one die in a facility, and not all of them because of COVID-19,” he said. “We’re not giving up on those people, but we’re going to have to get some guidance from the courts about the constitutionality of the bill.”
Adam Sholar, president and CEO of the North Carolina Health Care Facilities Association, which represents nursing homes, said the homes “should have limited protection when acting in good faith” against a disease that spreads easily and takes its greatest toll on the elderly. He said preventing infections has been hindered by a lack of personal protection equipment and changing guidance about the nature of the new coronavirus.
The North Carolina Healthcare Association, which represents hospitals, said broad immunity was necessary because hospitals had to cancel elective surgeries and postpone appointments. The association said in a statement that the changes during the pandemic “expose healthcare providers to malpractice litigation for decisions that are often beyond their control.”
Personal injury lawyers do not object to protecting health care workers, but they are concerned that extending the immunity to the board-room level could lead providers to relax standards of care. Kim Crouch, executive director of the N.C. Advocates for Justice, a group representing trial attorneys, said, “There are some North Carolina citizens that will be put at risk unintentionally because of the broadness of the immunity language.”
The North Carolina protection for health care workers and facilities comes as Senate Majority Leader Mitch McConnell is threatening to hold up new coronavirus aid bills unless the aid includes an immunity shield for many businesses. McConnell wants to prevent workers from suing their employers if they are not given reasonable protections against COVID-19 infections.
At a time when all are at risk, all should have recourse to the courts when companies ignore or even increase that risk. Health care companies, particularly those with checkered safety records, should not be granted blanket legal immunity while patients and nursing home residents may be exposed to injury or death by those who put profits ahead of safety.