Immunity talk for care homes angers families
Ford cabinet considering plan that could prevent lawsuits against Ontario LTC homes
It was the only way Vasuki Uttamalingam could see her parents during the COVID-19 lockdown: She’d stand outside the Altamont Community Care long-term facility and look into their main-floor bedroom window to smile and wave.
It was also how, on April 21, Uttamalingam saw her father draw his last breath. Uttamalingam Ponnampalam, 85, had COVID-19.
“I was looking at his bedsheets — if his bedsheets were moving, it meant he was breathing,” said the 55-year-old Vasuki, who’d rushed to the Scarborough home that morning because her father was to be admitted to hospital. “I didn’t look at my dad’s face. I was watching the bedsheets but finally the sheets stopped moving the same time the nurse came outside.”
The nurse confirmed her father had died. Vasuki broke down and wept amid family members.
Today, however, she is angry. News that Premier Doug Ford is considering protecting some businesses from civil liability linked to COVID-19 is something “I cannot accept … because I loved my dad,” she said.
It’s not clear exactly what the government is contemplating; neither the Premier’s Office nor the Ministry of the Attorney General would say when asked by the Star. But other jurisdictions such as British Columbia and several U.S. states have already taken steps to limit the liability of essential-service and health-care providers during COVID-19.
Nine states have gone so far as to specifically limit the liability of nursing homes, according to researchers.
On Tuesday, Ford told reporters cabinet would be sitting down to consider granting immunity, but hardened his tone Wednesday when asked if longterm-care home owners should be protected from civil lawsuits.
“Let me be very, very clear. I’m not supporting bad actors … I’m holding these people accountable,” Ford said. “When we get through this whole process and find out exactly what happened in these homes, there’s going to be accountability.”
The premier’s office did not answer the Star’s questions concerning the extent to which any proposed legislation would protect individuals or companies from lawsuits if they unwittingly infected others with COVID-19. The Ministry of the Attorney General also did not answer any questions.
“We are throwing every resource that we have at fixing a system that has been neglected for decades,” said Ivana Yelich, the premier’s press secretary, noting that the government will soon launch an independent commission into the COVID-19 crisis in Ontario’s long-termcare system. “We will pull out every stop to ensure our most vulnerable seniors are getting the right care.”
The death toll among residents of Ontario’s long-termcare homes is 1,798.
Cathy Parkes, whose father Paul died of COVID-19 on April 15 at Pickering’s Orchard Villa — the long-term-care home with the highest death toll from the virus in the province (currently 78) — said she was “livid” when she heard the government was considering creating an immunity measure.
“It makes me feel like my father doesn’t exist, like he wasn’t important,” said Parkes, who has launched a $1.6-million lawsuit against Orchard Villa and its owner Southbridge Care Homes, alleging negligence. “It makes me feel like his death was just another number, another statistic and it means absolutely nothing.” Green Party Leader Mike Schreiner said he is opposed to any “get-out-of-jail-free card” the Ford government “tries to give to itself or to negligent long-term-care providers.
“I recognize that we need to protect businesses and organizations that did everything in their power, with all the information available, to keep people from getting sick,” he said. “But we cannot ignore the possibility that some long-termcare homes did not act in good faith and knowingly allowed poor standards of care to continue.”
Stephen Birman is a lawyer at the firm Thomson Rogers who has initiated proposed class-action claims on behalf of residents (and their families) of Altamont Care Community and Woodbridge Vista Care Community, which are owned by Sienna Senior Living Inc. The lawsuit is claiming $20 million in damages from Altamont, where at least 53 residents died as a result of contracting COVID-19 and related illnesses since March17. None of the allegations have been proven in court.
“If any law is passed, it should be very restrictive and forward looking only; it shouldn’t protect the for-profit nursing home from the acts of omissions that led to the virus taking root in the first place,” Birman said. “When you’re talking about the nursing-home sector and a situation where a lot of the conditions that led to the rise to the is lawsuit arose prior to the COVID period, it would be a very dangerous thing to provide this type of protection.”
Vasuki Uttamalingam’s 79year-old mother is still recovering from the virus after five weeks in hospital and now lives with her daughter in Markham. Both are part of the Altamont class action. Donna Duncan, CEO of the Ontario Long Term Care Association, which represents close to 70 per cent of Ontario’s 630 long-term-care homes, said in an emailed statement that civilliability protection is a “necessary measure to stabilize and renew Ontario’s entire longterm care sector.”
“Without it, many insurance companies will cease coverage and long-term care providers would be unable to continue operating resulting in residents and their families having to find alternative living and care,” she said. “This approach, consistent with British Columbia, is recognition of the unprecedented nature of this virus that all frontline services faced. It in no way absolves responsibility when it comes to issues of gross negligence.”
In March, the B.C. government made an executive order that provides l i ability immunity for damages resulting from an individual being infected with COVID-19 if the person who spread the virus was following all emergency and public health guidance, or reasonably believed they were doing so. The immunity does not apply, however, if the person was “grossly negligent.”
“I’ve been crying this morning,” said June Morrison, after learning about what the provincial government is contemplating. Morrison’s father George died on May 3 at the age of 95 after contracting COVID-19 at Orchard Villa. She too is suing the home — not for money, she says, but to make “people recognize there’s a problem.”
Before he died, George Morrison was admitted to hospital with what his daughter says hospital staff told her was “anorexia.”
She says her father was also dehydrated and had a urinary tract infection.
“This is so degrading,” she said. “These are the kinds of things that bother me when I go to sleep at night or when I sit through the day … was my dad calling out for me? He asked me on Easter Sunday, ‘Come and get me, come and get me out of here.’ COVID had already hit that place … I wouldn’t have been able to get him out without risk to my own health.”
Parkes says she and other relatives of those who died of COVID-19 at Orchard Villa will fight any immunity measure in legislation.
“We want some sort of justice for what was done. And it’s not a matter of pointing fingers here and there. We know exactly where to point our fingers. We’ve lived it. We’re still living it,” she said. “We know who’s culpable. It’s not just the forprofit care homes. It’s also the government.”