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Accountability

Published on June 18th, 2020

 Connecticut Gov. Ned Lamont (D) issued an emergency order granting nursing homes immunity from most lawsuits during the coronavirus pandemic. Similar to recent measures in about 20 other states, the Connecticut order has sweeping implications, depriving potential plaintiffs of the ability to uncover an accounting of their relatives’ last days in nursing homes. The demand for information during the crisis has become particularly urgent: Since March, federal officials have curtailed routine inspections and restricted visitors in homes, leaving families to peer through windows or beg for information over the phone.
“Even with a history of these nursing homes having problems, why was immunity put in place?” Anagnos, who lost her mother, said. “I’m not looking for money. I’m looking for somebody to be held accountable.”
The Health Coalition on Liability and Access represents 36 associations, including the American Health Care Association. The lobbyists argue that nursing homes are entitled to immunity from accountability because medical equipment and tests are in short supply.  They want to use their lack of preparation as a reason they need immunity now—incredible.

For weeks, well-paid industry lobbyists have pushed governors for immunity from lawsuits, in some cases offering specific language for emergency orders, according to letters, public statements and media accounts. The groups also have promised campaign assistance to flailing Republican Senators only after Senate Majority Leader Mitch McConnell (R-Ky.) promised on the Senate floor  to extend additional immunity and tort reform to everyone in the health-care industry.

McConnell spins taking away a victim’s right to a jury trial or be compensated for abuse and neglect as a necessary measure to protect “health-care heroes” — doctors, nurses, researchers — from “nuisance” lawsuits.  Then why give immunity to management companies and corporate owners who are not licensed health care providers?

The protection comes as the industry continues to lobby for even more federal aid after the Trump Administration released over $5 billion to the country’s 15,000 Medicare-certified nursing homes.

Patient advocacy groups and legal organizations counter that even before the pandemic, many homes had been unable or unwilling to meet basic health, safety and staffing standards set by the federal government. Nursing homes, critics say, could use immunity to evade long-standing liabilities. Consumer advocates and experts assert that substandard facilities ought to remain subject to litigation resulting from life-threatening failures in infection control and patient care, and families need an opportunity to unravel the layers of secrecy that surround the thousands of unexpected or unexplained deaths during the pandemic.

Since the start of the pandemic, more than 30,000 nursing home residents have died of covid-19, state data shows. Through the discovery process in civil litigation, family members would have an opportunity to obtain medical and company records and the sworn depositions of caregivers and company officials.

The industry seized on this crisis to try to get a get-out-of-jail-free card,” said Steve Levin, a lawyer in Chicago. “I’ve never seen anything like it.”

Although nursing homes are the deadliest of all group settings during the pandemic, the disparity in coronavirus cases is still a medical mystery: Why have some homes, such as Kimberly Hall North, had dozens of deaths while others have been able to contain the outbreaks? By helping to stave off scrutiny, legal immunity makes it less likely that the public will ever fully know, lawyers and patient advocacy groups say.

Watchdog groups say the industry used the coronavirus emergency to push a longstanding agenda to limit liability and lawsuits. For decades, nursing homes have lobbied to set legal limits for damage payments and to compel nursing home residents to forgo the courts and take their cases to arbitration, where homes more easily prevail, lawyers said.

Even without immunity, proving how the coronavirus slipped inside a home is difficult, plaintiffs’ lawyers say.

“This so-called flood of litigation is simply not going to materialize,” said Robert Sachs, past chairman of the nursing home litigation group at the American Association for Justice. “These are going to be very difficult cases to prove on a number of levels. The hurdles are high.”

“My mother could have beat covid. I know it in my heart of hearts,” she said, adding: “No one cared or paid much attention. I just feel like someone should be held accountable.”

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