Heidi Li Feldman, an expert on tort law at Georgetown University Law Center, said nursing homes are commonly included under the umbrella of “health care providers.” If “health care providers” are shielded by a state law or an executive order, it is most likely that nursing homes would be shielded, too. She said that if nursing homes are protected by an immunity order, then the owners as well as their employees are protected from lawsuits.
Even in a state with an immunity order, Feldman said, a nursing home could be liable for a business decision like under-staffing or lying to families about coronavirus cases. Such an action would be considered a business decision and probably would not be covered under a health care shield during a pandemic.
Feldman said it would be odd if states immunized health care providers without providing “counterbalancing precautions to incentivize people to be cautious — even in an emergency situation.”
“It’s not unprecedented for people to ask to be shielded from tort,” she said, “but it is unprecedented to give that protection without making additional provisions for safety and compensation where it is legitimately needed.”