Nursing home immunity order may not stop lawyer

WOODBRIDGE — Connecticut is among more than a dozen states to give near-blanket immunity to nursing homes for issues related to the coronavirus pandemic, but one high-profile law firm sees the potential to challenge that under the legal exception of “gross negligence.”

Nationally, more than 20,000 nursing home patients have died from COVID-19, according to some estimates. Some 1,300 nursing home patients in Connecticut have either died or are believed to have died from the disease.

Jonathan Perkins of Jonathan Perkins Injury Lawyers, which has four offices around the state, said his firm is in the early process of getting files on about six patients at several nursing homes.

“It’s a very unfortunate situation, to be euphemistic about it,” Perkins said of the deaths in nursing homes.

Perkins said he knew there was something

“grossly wrong going on” when he saw so many people dying in nursing homes and they weren’t being protected or moved elsewhere.

Gov. Ned Lamont in early March signed an executive order granting the state’s hospitals, nursing homes and health care workers immunity from lawsuits while the COVID-19 public health emergency is in effect.

Only actions that “constitute a crime, fraud, malice, gross negligence, (or) willful misconduct” by a health care individual or facility are exempt from immunity, according to the order.

“If we can show gross negligence, the governor’s order doesn’t grant immunity,” Perkins said.

He said it’s up to the courts to more clearly define the matter and that smaller injury law firms won’t necessarily have the time or money necessary to set a precedent.

Perkins said it’s known that COVID-19 spreads easily and can be more deadly in the older population with health limitations and preexisting conditions.

He said when people are in close proximity it’s “very difficult” to have appropriate social distancing.

“They should have been moving people out if they couldn’t treat them properly,” to a hospital or other institution, Perkins said.

But, he said, nursing homes don’t “get paid” if the patients aren’t there.

He said it is quite likely the disease was being spread by staff and, in the early months, there wasn’t appropriate testing or personal protective equipment available.

Nursing homes were mandated to control spread of infection in the environment “long before COVID,” Perkins said. “It’s clear to me they have not met that environmental standard.”

Perkins said “gross negligence” means more than careless, but not to the level of reckless.

The issue “needs to go to court,” he said. “We don’t know how the nursing homes or institutions are going to respond,” because it’s only been a couple of

months.

Perkins has offices in Woodbridge, Bridgeport, Waterbury and Hartford.

John Thomas, professor of law at Quinnipiac University and director of the program on International Human Rights Law, said such cases would be theoretically “winnable” but “difficult,” as “the proof would be difficult.”

He said gross negligence involves willful disregard for the safety of another and the proof of that would be difficult because nursing homes may have the defense that the pandemic was a chaotic time and they couldn’t have done any better. Regarding a shortage of PPE they could argue that there were shortages everywhere and they didn’t have access to enough supplies either, he said.

Thomas said nursing homes could argue there was no where to bring the patients and there were problems transporting patients safely during the early part of the pandemic.

Robert Sanders, an attorney who is an associate professor at the University of New Haven and chairman of the UNH National Security Deptartment, said of Perkins’ lawsuit possibilities, “He’s not completely off the charts, but it has to be tied to a timeline” to show gross negligence.

At some point during the pandemic, there was a “big spear of knowledge” about the virus in terms of who is vulnerable, how quickly it spread and other factors, Sanders said.

But for weeks before beginning in early February there was conflicting information from the president, the Centers for Disease

Control and Prevention, the World Health Organization and other sources, Sanders said.

At some point everyone had full knowledge of how the virus works, he said, so, “You’d have to plot the timeline,” and ask, did the nursing homes know or should they have known who was vulnerable and how quickly the virus spreads.

At the end of March, beginning of April, facts about the virus and vulnerable populations were clear, he said, and when information comes in and you’re running a facility, “you’re definitely getting negligent if you ignore it,” he said.

Sanders said the issue around PPE could include whether groups of positive COVID-19 patients and negative ones were separated and whether a PPE plan was in place for each side, perhaps with more PPE on the COVID-19 side and a rule of not mixing staff between the two.

According to a recent Associated Press report, nursing homes nationally are pushing back against the potential flood of lawsuits with a sweeping lobbying effort to get states to grant them emergency protection from claims of inadequate care.

Like Connecticut, at least 15 states have enacted laws or governor’s orders that either explicitly or apparently provide nursing homes and long-term care facilities some protection from lawsuits arising from the pandemic. And in the case of New York, which leads the nation in deaths in such facilities, a lobbying group wrote the first draft of a measure that would

make it the only state with specific protection from both civil lawsuits and criminal prosecution, the AP reported.

The industry, according to the AP report, “is forging ahead with a campaign to get other states on board with a simple argument: This was an unprecedented crisis and nursing homes should not be liable for events beyond their control, such as shortages of protective equipment and testing, shifting directives from authorities, and sicknesses that have decimated staffs.”

Watchdogs, patient advocates and lawyers have argued that legal liability is the last safety net to keep facilities accountable.

They also contend, the AP reported, that nursing homes are taking advantage of the crisis to protect their “bottom line.” More than 60 percent of the nation’s nursing homes are run by for-profit companies.

Paul Kidwell, a spokesman for the Connecticut Hospital Association, has acknowledged the influential lobbying organization asked the state to consider an immunity provision.

“The Connecticut Hospital Association appreciates Gov. Lamont’s appropriate grant of liability protection for good faith actions taken by health care workers and facilities during this unprecedented public health emergency,” Kidwell has said. “Connecticut’s hospitals have provided exceptional care for our patients during this crisis and will continue to do so based on the most relevant and current information available for how best to treat this disease.”

Connecticut’s immunity ends when the governor’s

emergency executive orders — ranging from social distancing to closing schools and businesses — are lifted.

The order blocks “any health care professional or health care facility” from civil lawsuits for injury or death because of “acts or omissions undertaken in good faith while providing health care in support of the state’s COVID-19 response.”

Most legal experts concede that Lamont, using public health emergency powers, has the authority to grant immunity without legislative approval.

Sachin Pandya, a University of Connecticut law professor, has said that under normal times a person suing a health care provider must prove some form of wrongdoing.

“The big difference here is the person being sued would be able to raise as a defense that they have immunity within the terms of this order,” Pandya has said.

State Rep. Vincent Candelora, R-North Branford, has told the Register that because doctors are still trying to understand and treat the virus, it’s difficult to hold the health care industry liable for mistakes.

“Certainly, whenever you’re invoking immunity, it’s going to make it more difficult to take action against any health care industry,” Candelora has said.

But Candelora said he agrees the order does not stop health care providers from being held accountable for “certain levels of negligence or malfeasance,” although he admitted it might make attorneys less likely to pursue a liability case.