Readers of my blog know of my devotion to protecting the legal rights and the health & dignity of nursing home patients, “memory care” patients, as well as hospital and rehabilitation center patients. These people are the elders who raised us, and they are now among the most vulnerable and often forgotten in society. While I been practicing in this sub-specialty and writing about these issues for several years, I’ve recently published a series of accelerated publications on this topic, in the wake of COVID-19. Unfortunately, in today’s post, I have some troubling news to report.
At the behest (more accurately, pressure) of the Massachusetts nursing home industry and its related healthcare partners, the Baker administration recently passed & signed special legislation providing for legal immunity against the nursing home industry and hospitals, for injuries to patients occurring during the COVID-19 problem. The effective date of the liability immunity providing to health care organizations in the act, is retroactive to March 10, 2020. The text of this new law can be found by clicking here.
This legislation has profound and very troubling consequences for the care, the safety and the health of nursing home patients in this state. Legally, under normal circumstances, if a patient in a Massachusetts nursing home, rehabilitation center or hospital suffered injuries due to negligence on the part of a staff member of the provider, that provider could be held liable for resulting damages, especially pain and suffering. The plaintiff in such a circumstance (which would be either a guardian, a health care proxy, or the patient him or her self), would first need to demonstrate that a relevant “standard of care” had been breached by the nursing home or other defendant, in order to recover damages. That “standard of care” is normally deemed to have been violated if the plaintiff can demonstrate that the actions or inactions involved in the matter, constituted what is called “ordinary negligence.” This is a standard of evidence that can sometimes be legally challenging, but is typically not a bar to legal recovery.
The bill signed by Gov. Baker late in April, has changed that standard, providing legal immunity for nursing homes, healthcare institutions and hospitals for all allegations of neglect or injury during COVID-19, except those involving what is called “gross negligence”. As written and signed, the new law preserves liability for acts of gross negligence, but this is a higher level of negligence that is much harder for plaintiffs to reach in order to establish that the defendant provider did engage in that level of negligence. Worse, the law also provides that injuries that patients suffer due to under-staffing during COVID-19, do not constitute “gross negligence.” Thus, as just one example, if a patient did not have his or her urinary catheter changed or cleaned due to a lack of staffing, and the patient then developed a septic infection and died as a result of that infection, the nursing home or hospital would have immunity from liability. Outrageous, isn’t it?
During a health care crisis like COVID-19, when elderly and sick patients are at their most vulnerable, nursing homes and hospitals should be required to operate at peak efficiencies, not lowered ones. They should be on their highest guards for patient safety and care – not relaxed ones. Their attitudes and thinking should be “We’d better double and triple-down on care of our patients and infection control protocols”, not let these practices slip because “we now have legal immunity for all but the worst instances of patient neglect.” As a Massachusetts nursing home neglect & abuse attorney, I find this legislation outrageous, and an abandonment of the weak and the voiceless. But, sadly, this is what backroom political deals in politics produce. Money talks. It always has, and always will. Powerful and organized interests on Beacon Hill, such as the nursing home and health care industries, have powerful lobbyists and know how to protect those interests.
Here at our firm, we’re not giving up, despite this special-interest legislation. We see a ray of light to possibly break through this legislation, and prove gross negligence in several cases, possibly achieving justice for patients that have been harmed during COVID-19 – whether through contracting the virus itself, or suffering some form of injury due to substandard care during the crisis. One of these legal avenues might involve establishing liability for nursing homes or other healthcare organizations that had been previously cited, prior to COIVD-19 period, for operational deficiencies – whether in staffing or infection control, or other areas. In other words, if we determine that a patient who was neglected, injured or died at a facility that had, previous to the COVID-190 outbreak, been cited for some deficiency in the past, we would argue that the legal immunity for “gross negligence” provided by this new law, shouldn’t apply to the particular case involved, due to a history of prior deficiencies.
At this early stage, we see some hope in this possibility – -and we intend to bring forward any cases that may contain these facts.
For those that have loved ones in nursing homes, nursing facilities, rehabilitation centers or hospitals, I know that it is hard to be told news of this disturbing legislation. Worse still, under circumstances where family members can’t even visit their loved ones in a nursing home. But people need to know these facts. Until these no-visit “orders” are lifted, do not “disappear”: Stay on the phone with the Facility Director and Nursing Directors at these facilities. Make it politely clear to them that you are checking up on your loved one’s care and condition – that you are watching, from wherever you are.