Long-term care Facilities Pursue Questionable Legal Actions In The Midst of Pandemic, Raises Eyebrows
By Jeff Downey, nursing home abuse attorney serving Washington DC, Maryland, and Virginia
One would think that with nearly 40 percent of deaths coming from the Covid-19 virus that the nursing home industry would seek to find a solution. The number stands at 186,000 deaths according to the AARP, the nation’s largest advocate for seniors.
The rising number of cases doesn’t seem to deter the nursing home industry’s attempt to use legal maneuvers to shield themselves from accountability, even amid a pandemic.
In response to a lawsuit filed on behalf by a North Carolina family, and cited in this Washington Post article, lawyers for the defendant, Spring Harbor of Wilmington, contend in a court filing that the long-term care facility is exempt from legal liability under a temporary North Carolina pandemic law in the death of Garland Garrett Jr, a resident from 2017.
Greg Garrett, the son, has called the legal tactic put forth by the facility as a “cop-out.”
This distinct case involved a resident of the facility with a long record of dangerous behavior who allegedly killed 80-year-old Garland Garrett on September 12, 2020.
The assailant was not charged because of his dementia and has since died.
The North Carolina law, adopted in May 2020, included a broadly worded emergency liability exemption which protects facilities and staff from malpractice and negligence lawsuits during the pandemic.
In the court filing, the assisted living facility Spring Harbor of Wilmington says the covid-19 emergency law immunizes it from the death of a resident, even though that resident was not killed by the coronavirus.
A spokesman for North Carolina Governor Cooper’s office says the law’s interpretation was not intended to give blanket immunity, according to the Washington Post article.
This lawsuit has brought attention to the vagueness and broad interpretation of the enacted law.
The assisted living facility is owned by Virginia-based HHHunt, a real estate company, and its related firm, Spring Harbor Senior Living, operate facilities in Maryland, Virginia and North Carolina.
There are 38 states, including Maryland and Virginia, that have enacted emergency orders or laws intended to immunize companies and individuals for care related to the pandemic, according to the National Consumer Voice, a non-profit watchdog organization focusing on nursing homes. Lobby groups representing the nursing home industry pushed hard for such immunity laws.
Sam Brooks, with National Consumer Voice was quoted in the Washington Post, saying “facilities have relied on families to provide care so they can short-staff their facilities.”
In the Garrett case, the family alleged that the Spring Harbor banned visits, thus allowing the nursing home to dictate the narrative of what was happening to Garland Garrett.
The North Carolina pandemic immunity law blocked plaintiffs from bring cases to court that cite low staff levels as a root of negligence. This has brought a freeze to the efforts to bring a lawsuit to court on behalf of clients since judges citing the immunity law will rule against the plaintiff.
In the Garrett case, as in others, the ban on family visits and the immunity law were obstacles that were too much to overcome, and, as a result, indirectly led to a loved one’s death. As in most nursing home cases, it is the families that serve as the eyes and ears for the nursing home staff and administrators themselves, bring attention to issues of concern regarding their loved ones.
It is in North Carolina, however, where the immunity claims are being cited in court by facilities to defend themselves against cases that are not related to covid-19 and its treatment. Let hope this is not harbinger of things to come.
The National Consumer Voice on its website said most states have exceptions for acts of “gross negligence” or those in lack of good faith, higher standards than the usual negligence allegations found in nursing home lawsuits over issues such as bed sores, falls, dehydration, chocking, undiagnosed or untreated infections and medication errors.
The Garland Garrett case against Spring Harbor is not the only case going through the North Carolina court system. In a separate case from September 2020, a judge dismissed charges that nursing home was negligent when it declined to send a patient with an infected pressure ulcer, citing the state’s immunity law passed in May 2020. The patient’s family in that case is appealing.
If you have a loved who has experience trauma and injury due to negligence on the part of nursing home, assisted living facility or health care provider, contact the Law Office of Jeffrey J. Downey, for a free consultation.
The Law Office of Jeffrey J. Downey
8270 Greensboro Drive, Suite 810
McLean, VA 22102