Nursing homes need increased staffing, not legal immunity

With nursing homes accounting for the majority of COVID-19 deaths in many states, the long-term care industry has joined with other health care providers to successfully lobby for protection from lawsuits. The result: Nineteen states have granted nursing homes new immunity from civil liability either by executive order or statute.  

All of these new measures shield health care providers — usually defined as both individuals and the institutions where they work — from liability for negligence. New Jersey and New York even protect against certain forms of criminal liability. Moreover, while some only prevent COVID-19 patients and their representatives from holding providers liable, others could foreclose almost all lawsuits against nursing homes during the COVID-19 disaster.  

The industry justifies these measures as essential to protect against liability that would threaten their operation. For example, the Florida Health Care Association, writing to Gov. Ron DeSantis (R), argued that immunity was “necessary” so that facilities could provide care “without fear of reprisal.”   

This rhetoric exaggerates the industry’s vulnerability to litigation. Even without legal immunity, COVID-19 could ravage a nursing home — killing most residents — without the facility being liable. This is because, consistent with established tort law doctrines, facilities that operate reasonably are unlikely to be liable for COVID-19 related harms, including residents’ deaths. 

Nursing homes are generally only liable for harm to residents if they fail to act reasonably under the circumstances and that failure leads to foreseeable physical harm. This standard already favors facilities struggling with COVID-19. First, when deciding liability, courts typically consider the underlying circumstances, which include the institution’s resources and external factors (such as COVID-19). Conduct that would be negligent in normal times may be permissible during a pandemic. Second, whether health care providers are liable depends in large part on what similar entities would have done in the same situation. Indeed, establishing that a facility complied with professional standards is generally sufficient to defeat a medical malpractice claim. Consequently, nursing homes may be able to escape liability even for seemingly deplorable conditions if they show that they acted like other homes did in the face of the pandemic.  

This truth exposes the real impact of the new immunity provisions: protecting providers who act unreasonably and fail to follow industry norms. True, immunity may save institutions money by deterring lawsuits, which can be costly to defend even if unsuccessful. But it also places the good actors in the industry at a competitive disadvantage relative to providers willing to cut costs by sacrificing resident care and safety.

It is hard to see how protecting nursing homes from liability — especially when the benefits accrue primarily to bad actors — outweighs the interest of residents, their families and the public in holding these institutions accountable. Although highly regulated, nursing homes rarely face fines or other significant penalties. Moreover, the Centers for Medicare and Medicaid services has responded to the pandemic by suspending enforcement actions against homes and waiving key regulatory requirements. In this context, private lawsuits are a key source of accountability and the new immunity measures eviscerate one of the only meaningful checks on nursing homes’ conduct.

There is less justification for granting immunity to nursing homes than to hospitals and other acute care providers. Hospitals justify their push for immunity on the grounds that courts should not second-guess the ethically charged resource allocation decisions made rapidly in response to a crush of COVID-19 patients. By contrast, the primary concern for nursing homes is that they will be held liable for inadequate infection control — a problem that typically reflects more deliberative choices over time. 

The pandemic has exposed the staffing shortages and poor conditions that already plagued long-term care. The industry could use this historic moment to push for the resources that would help protect residents and workers now and in the future, including funding that would help facilities maintain a sustainable, full-time staff.  Experts agree that most nursing homes were dangerously understaffed even before the epidemic and the industry’s heavy reliance on part-time staff (an estimated 15 to 17 percent work multiple jobs) has been linked to COVID-19 spreading between facilities. Increased funding tied to higher staffing levels and fair compensation for direct care workers could help address these systematic problems. 

Unfortunately, the nursing home industry is squandering this political opportunity by lobbying for what some members want to protect their bottom line — and not what all could use to protect residents.  

Nina A. Kohn is the David M. Levy professor of law at Syracuse University and a visiting professor at the Yale Law School. Her research focuses on the civil rights of older adults. Follow her on Twitter @NinaKohn.

Jessica L.  Roberts is the Leonard H. Childs chair in law and a professor of medicine at the University of Houston, where she directs the Health Law & Policy Institute.  Follow her on Twitter @jrobertsuhlc.