Tuesday, May 12, 2020
We aren't nearly out of this yet, and discussions are taking place about shield laws for businesses, especially for nursing homes. For example, a week or so ago, the Washington Post ran an article, White House and Congress clash over liability protections for businesses as firms cautiously weigh virus reopening plans. Bloomberg Law ran a story about the scope of shield laws for nursing homes, Coronavirus Liability Shields for Nursing Homes Only Go So Far (this gives the reader a good understanding of how the laws work, and what would not be covered).
The New York Times ran this story: Faced With 20,000 Dead, Care Homes Seek Shield From Lawsuits.Some facilities have sought and received protection under governors' executive orders. Others have sought legislative protection. As the Times article notes
At least 15 states have enacted laws or governors’ orders that explicitly or apparently provide nursing homes and long-term care facilities some protection from lawsuits arising from the crisis. 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 apparently makes it the only state with specific protection from both civil lawsuits and criminal prosecution.
What are the facilities arguing? This, according to the article "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."
Consider the other side of this coin, where advocacy folks note "At a time when the crisis is laying bare such chronic industry problems as staffing shortages and poor infection control, ... legal liability is the last safety net to keep facilities accountable.... They also contend nursing homes are taking advantage of the crisis to protect their bottom lines. Almost 70% of the nation’s more than 15,000 nursing homes are run by for-profit companies, and hundreds have been bought and sold in recent years by private-equity firms."
The article reports that NY is one of the states with an immunity law. "New York’s immunity law signed by Democratic Gov. Andrew Cuomo was drafted by the Greater New York Hospital Association, an influential lobbying group for both hospitals and nursing homes that donated more than $1 million to the state Democratic Party in 2018 and has pumped more than $7 million into lobbying over the past three years." There are some states with emergency orders of immunity, including "Alabama, Arizona, Connecticut, Georgia, Illinois, Kentucky, Massachusetts; Michigan, Mississippi, New Jersey, Nevada, Rhode Island, Vermont and Wisconsin." The Florida nursing home group has requested protection from Florida's governor; his decision is pending.
This is not an easy issue, nor one that will be quickly resolved (I don't think). Pay attention to this as it unfolds.