Nursing Homes, and Others, Are “Immune” From COVID-19 Liability?

Nursing home staff have been begging for proper PPE in homes, but many are required to use inadequate protection. Some staff are using things such as ponchos and even trash bags, and some with no protection at all. Such terrible conditions put elderly patients at risk. If a nursing home corporation failed to prepare for infections by having insufficient PPE for staff, can they be sued? No, not in North Carolina.

On May 4, 2020, Governor Roy Cooper signed the COVID-19 Recovery Act into law in North Carolina. This law extends immunity to not only health care providers but “essential businesses” and “emergency response entities.” The portion of the Recovery Act referred to as the Emergency or Disaster Treatment Protection Act amends Chapter 90 of the N.C. General Statutes outlining immunity for health care facilities. The definition provided for health care facility is very broad and includes not only the facility, it also includes the staff and even executives and board members associated with the facility. To qualify for this immunity, health care providers must show that the health care services were directly or indirectly impacted by decisions made as a result of COVID-19 and the services must have been provided in good faith. If those conditions are met, under NCGS § 90-21.133 health care providers are protected from civil suits for injury/harm “that may result from the treatment of individuals during the COVID-19 public health emergency under conditions resulting from circumstances associated with the COVID-19 public health emergency.”

So, what about other potential negligence in nursing homes and hospitals, not related to COVID-19? They are probably “immune” from that liability too. This immunity encompasses care given for the treatment of COVID-19 but also any care given to any patient for any reason, during the pandemic. Moreover, the immunity operates retroactively to cover occurrences dating back to March 10, North Carolina’s COVID-19 emergency declaration date. More people die from medical malpractice than car wrecks, breast cancer, and AIDS… combined. As of right now, health care providers can be negligent and get away with it. There is nothing you can do. The only exceptions to this immunity include gross negligence, reckless misconduct, and intentional infliction of harm. Note though, that failures to act or decisions resulting from resource and/or staffing shortages will not be deemed gross negligence or reckless misconduct.

As noted above, North Carolina addressed limited immunity for health care providers but also for essential businesses and emergency response entities. The COVID-19 Recovery Act amends Chapter 66 of the N.C. General Statutes. Under NCGS § 66-460 essential businesses that provide goods or services in North Carolina will have immunity from civil liability for injuries/damages of customers or employees who contract COVID-19 through the business. As with the immunity provided to health care providers, it is not absolute and these entities will not be protected from civil liability arising from gross negligence, reckless misconduct, or intentional infliction of harm. Also, and this is a very important point, this immunity does not prevent employees from filing for workers’ compensation benefits for injuries related to contraction of COVID-19. This immunity is from civil suits/liability only.

What can we do about it? Not much. Normally, I would say go to the nursing home and make sure that staff are using PPE when taking care of your loved ones. However, right now, you can’t get in to see them because of proper restrictions on visitation. You can contact the nursing home, doctor’s offices, or other businesses and express any concerns you have about improper infection safety procedures. However, the primary remedy isn’t available, tort law. Tort law essentially means “you break it you fix it or pay for it.” That has been the law since Roman times. We try to make things right by making people pay for things they have done and hold them responsible. Another, and possibly even more important reason for tort law, is deterrence. The threat of litigation helps stop risky behavior. Knowing that you may be financially responsible for your actions, makes people think twice. Not now. There is no remedy. Basically, this is one of the exceedingly rare times in the history of modern western civilization, people will not be held accountable for their actions. If a nursing home doesn’t provide masks but tells staff to work anyway? Tough luck for the elderly residents there. If a hospital gives you the wrong medication and you are killed? Sorry about that.

Nurses are our frontline defense against this pandemic, and they are doing a heroic job. If the company that they work for puts them at risk and patients at risk for failure to have safety equipment, the company should be responsible for it. Nurses and patients should not have to pay the price for corporate failures.

These are unquestionably, unusual times. It is challenging to address the various concerns and competing societal interests that arise during extraordinary times. North Carolina’s COVID-19 Recovery Act was an attempt to address some of the concerns and interests by providing new and expansive protections to certain directly impacted by the COVID-19 pandemic but law overreaches and the negative consequences of the Act are significant and wide-spread. While good people can differ as to who should be accountable and under what circumstances, that is why we have jury trials. Juries decide. The right to a jury trial protects us. Currently, that right has been suspended. Hopefully, this won’t last too long.