By Alexander Somodevilla and Sara Rosenbaum
1. Introduction
As reported by the Washington Post, CMS recently found that nursing homes operated by Life Care Centers of America (“Life Care”) violated federal standards intended to stop the spread of infections and communicable diseases during the COVID-19 pandemic. These deficiencies can be a matter of life or death for patients at nursing homes, who tend to be older, have underlying health conditions, and have been particularly impacted by the pandemic. Indeed, the outbreak at Life Care Center Kirkland in Washington state illustrates the worst-case scenario. The center suffered the country’s first reported COVID-19 outbreak, which led to 129 COVID-19 cases and 37 deaths.
Notably, between one-third and one-half of coronavirus deaths nationwide have occurred among residents of long-term care facilities. Nursing homes and other health care facilities can expect a flurry of lawsuits from patients and their families for allegedly mishandling the COVID-19 pandemic. However, this raises important legal and policy questions – what exactly is the standard of care during an unprecedented pandemic? Furthermore, should providers be afforded immunity for care provided during the pandemic, given its unprecedented nature and the subsequent shortages in staffing and supplies? This issue is only becoming more salient as cases and deaths resulting from COVID-19 keep mounting.
2. State Provider Immunity Statutes and Executive Orders
Although the federal government has taken steps to protect certain volunteer workers responding to the COVID-19 pandemic, the principal area of healthcare provider protection will be found in the states. To gain a better understanding of the extent to which providers are protected from immunity across the U.S., we conducted a review of state actions taken since the COVID-19 pandemic. Our review found that 26 states have acted, either through legislation or executive order, to extend immunity to health care facilities and providers for care provided in response to the COVID-19 pandemic. However, there are several important differences that may lead a provider or facility to face varying degrees of liability depending on the state where care is provided.
A. Services and Patients Covered
Many states use general language in extending immunity. For example, Arizonaoffers protection for actions taken “in support of the State’s public health emergency.” This type of language is quite broad, leaving the scope of the protection ambiguous. From this language, it is not clear if immunity will extend to harm to non-COVID-19 patients caused by, for example, insufficient staffing or lack of equipment due to the pandemic.
Other states suggest they will extend immunity to care provided to non-COVID-19 patients that may be affected by the pandemic. North Carolina extends immunity if “the arrangement or provision of health care services is impacted, directly or indirectly” by the COVID-19 pandemic.” Other states outline specific examples of indirect impacts that will be afforded liability protection. For example, Connecticutextends immunity to harm caused by a lack of resources attributable to the COVID-19 pandemic. New Jersey protects any act or omission “in connection with the allocation of mechanical ventilators or other scarce medical resources.” Furthermore, Utah provides immunity for the “redeployment or cross-training of staff not typically assigned to such duties, to the extent necessary to respond to the COVID-19 outbreak” and “reduced record-keeping to the extent necessary for Health Care Providers to respond to the COVID-19 outbreak.” This type of language envisions harm not only caused by a lack of certainty regarding the proper treatment of COVID-19 patients but also the downstream effects of the pandemic on resources, supplies, staffing, and administration.
New York takes things one step further by including in its definition of “health care services” that will be immune from liability “the care of any other individual who presents at a health care facility or to a health care professional during the COVID-19 emergency declaration.” This suggests that New York will extend immunity to all care provided by health care facilities and professionals during the public health emergency.
On the other hand, some states specify that the provision of services to non-COVID-19 patients will not be afforded liability protections. Pennsylvania states that the “grant of immunity shall not extend to health care professionals rendering non-COVID-19 medical and health treatment or services to individuals.” And Oklahoma only provides immunity for “harm to a person with a suspected or confirmed diagnosis of COVID-19.”
B. Providers and Facilities Covered
Most states indicate that immunity will be extended to certain providers. However, states take different approaches to specifying which types of providers will be covered. Hawaii, for example, is quite specific, as it enumerates a comprehensive list of the providers that will be protected. Michigan, however, is far less specific, granting immunity to any “licensed health care professional.”
Most states also grant immunity to various types of health care facilities rendering health care services in response to the COVID-19 pandemic, including hospitals, nursing homes, and community health centers. However, although Pennsylvaniaextends immunity to individual providers who engaged in emergency services in a variety of facilities during the outbreak, it does not extend immunity to “the facilities and entities themselves.”
C. Exceptions
Most states specify that immunity will not be extended to acts or omissions that amount to gross negligence, reckless disregard, or willful misconduct. However, Massachusetts is unique in that it also provides that it will not extend immunity for damages caused by “conduct with an intent to harm or to discriminate based on race, ethnicity, national origin, religion, disability, sexual orientation or gender identity….” This presumably provides potential plaintiffs with an additional avenue to pursue a claim.
3. Is Life Bridge Covered?
Even assuming an individual state’s provider immunity law covers services provided by nursing facilities, Life Bridge is not automatically in the clear. CMS found that Life Bridge staff failed to wash hands, wear PPE, enforce proper social distancing guidelines, supervise an isolation room, and log patients with fevers. All of these acts or omissions arguably violate the standard of care, the cornerstone of a medical malpractice cause of action.
However, although all states protect ordinary negligence arising from the COVID-19 pandemic, they do not protect “gross negligence.” The exact definition of gross negligence varies wildly by jurisdiction, and even within jurisdictions is a difficult legal theory to consistently apply. One court described gross negligence as a nebulous “twilight zone which exists somewhere between ordinary negligence and intentional injury.”
Courts in Washington, the state in which the first outbreak occurred, defines gross negligence as a failure to exercise slight care, which is “negligence substantially and appreciably greater than ordinary negligence.” Courts in other states, like New York, use a higher standard, defining gross negligence as “conduct that evinces reckless disregard for the rights of others or ‘smacks’ of intentional wrongdoing.”
One can imagine some courts using the Washington standard finding that Life Bridge’s acts and omissions were indeed grossly negligent. Considering the information available to the facilities regarding the nature of the disease and the unique vulnerability of facility residents, failure to take common-sense precautions such as washing hands, wearing PPE, and enforcing proper social distancing guidelines may indeed be “appreciably greater” than mere ordinary negligence. However, plaintiffs bringing suit in states that take the New York approach may have a more difficult time of it, as, although Life Care’s deficiencies were arguably extremely careless, they do not necessarily “smack” of intentional wrongdoing.
A table with all relevant language from state actions extending some level of provider immunity during the COVID-19 pandemic can be found here.