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.