Aided by many states, nursing homes fend off lawsuits filed by families over COVID deaths
With coronavirus cases circulating through Fair Acres Geriatric Center nursing home in June 2020, Christopher Beaty had alarming news for his family.
His roommate at the Lima, Pennsylvania, nursing home had become sick with symptoms of COVID-19.
Yet the roommate shared a room with Beaty for another 24 hours, continuously exposing him to the virus until he was relocated after testing positive, according to a federal lawsuit.
It was too late for Beaty. The 63-year-old developed a fever and struggled to breathe. He was transferred to a nearby hospital on June 3 and tested positive for COVID-19. He died three days later.
Beaty’s son, Christopher Beaty Jr., believes his father would have survived had the Fair Acres nursing home staff acted quickly to move his roommate to protect Beaty from getting sick.
“I strongly believe that if they would have followed regulatory guidelines to isolate individuals if exhibiting COVID symptoms, this could have been prevented,” said Beaty Jr.
Like dozens of other lawsuits filed against nursing homes since the beginning of the COVID-19 pandemic, the pace of the Beaty family’s claim has slowed to a crawl. Nursing homes have sought court deadline extensions, filed appeals, petitioned to change courts, or sought legal protections from states to shield liability.
And 38 states have enacted legal protections making it more difficult to sue nursing homes for COVID-19-related injuries or death.
Last June, attorneys for Fair Acres filed a motion to dismiss the lawsuit, claiming the home was protected from virus-related claims under a federal law called the Public Readiness and Emergency Preparedness Act. A federal judge in August rejected the request, and the nursing facility appealed to the U.S. Court of Appeals for the District of Columbia Circuit. A hearing is scheduled for April 28.
An attorney representing Fair Acres and the nursing home administrator did not return calls about the case.
No lawsuits alleging people died from COVID-19 due to negligent practices at nursing homes have reached a jury, experts say. Multiple wrongful death claims are now before five appellate courts, said Adam Pulver, an attorney with Public Citizen, a nonprofit consumer advocacy organization.
“Even though we've been winning at every step of the fight," he said, "it just takes a long time."
Caregivers not allowed to wear masks
Ricardo Saldana lived in a Glendale, California, nursing home since he recovered from a stroke in 2014.
A lawsuit filed on behalf of his family alleges the Glenhaven Healthcare nursing home did not provide masks to employees in March 2020 and told employees they were not allowed to wear their own masks. When a local fire department delivered masks to the home, an administrator locked them in a cabinet and would not allow employees to use them, the lawsuit states.
In April 2020, the home did not implement a policy to isolate people with or suspected of having coronavirus, the lawsuit claims. A resident who had shared a room with a COVID-19 positive patient was transferred to a room with Saldana, who soon had a fever and other symptoms. Saldana’s condition worsened, and he died on April 13, 2020, from COVID-19, the lawsuit states.
The family's lawsuit was filed in May 2020 in Los Angeles Superior Court. Attorneys representing Glenhaven filed to move the case to federal court. A federal judge sent the case back to Los Angeles Superior Court. The nursing home appealed the federal judge's decision. On Feb. 22, the Ninth U.S. Circuit Court of Appeals upheld the decision to keep the lawsuit in state court.
Nursing homes have argued the federal PREP Act protects facilities from the vast majority of lawsuits alleging virus-related injuries or death, except in cases alleging "willful" misconduct, an extremely high legal standard. The federal law passed in 2005 to accelerate the production and distribution of vaccines in response to public health emergencies. In March 2020, then-Health and Human Services Secretary Alex Azar invoked the federal law at the start of the COVID-19 pandemic.
More:Government program tapped to pay for COVID-19 vaccine injuries rarely sides with consumers
The Ninth Circuit panel ruled the PREP Act does not limit virus injury lawsuits to only "willful" lawsuits and that the case belongs in state court.
Pulver, who represented the Saldana family on the appeal, said the decision affects more than 50 cases in the Ninth Circuit alleging similar claims. Those cases will be allowed to move ahead in state courts, Pulver said.
On March 22, attorneys representing Glenhaven filed a petition for rehearing before the Ninth Circuit, noting the case is of “exceptional importance” because nursing homes nationwide “are facing an ever-mounting number of lawsuits arising out of COVID-19 cases in their facilities.”
Attorneys representing Glenhaven did not return messages about the case.
Scott Glovsky, an attorney representing the Saldana family, said the nursing homes attempted to “shut the courthouse doors” to families whose loved ones died from COVID-19.
“Their goal was to hide behind the government, claiming that they were immune from liability regardless of whether they caused people's deaths,” Glovsky said.
State laws shield nursing homes
Nursing home representatives and other health care providers have argued for limits on who can sue on claims of virus-related injuries or death during a global pandemic.
Nursing homes have been among the most lethal places during the pandemic with more than 200,000 residents and staff dying from COVID-19.
An analysis by the National Consumer Voice for Quality Long-Term Care – which formed in 1975 in response to concerns about substandard nursing home care – found 38 states passed legislation or executive orders as of June 2021 offering immunity to nursing homes during the pandemic. The state actions give varying levels of legal protection for companies and individuals who provide care to residents who become infected with coronavirus.
Some states retreated from those initial legal protections. In April 2021, former New York Gov. Andrew Cuomo signed legislation repealing virus-related liability protections for nursing homes and hospitals. The repeal came after a state attorney general's office found the Cuomo administration underreported nursing home COVID-19 deaths by 50%.
More: This nursing home chain stood out for nationally high death rates as pandemic peaked
Sam Brooks, a National Consumer Voice program and policy manager, said the laws in most states shield homes from any harm experienced by residents during the pandemic. Other factors that potentially made residents more vulnerable: Nursing homes initially saw less scrutiny while the virus was circulating, with families restricted from visiting homes and state inspectors often unable to do on-site surveys.
“It's a steep hill to climb, and the industry did a really good job about ensuring that it was even steeper for residents and their families,” Brooks said. “You're really only going to see very egregious cases.”
But nursing home representatives say legal protections are necessary to allow facilities to focus resources on caring for residents.
Nursing homes have lost 238,000 workers since the start of the pandemic, according to an analysis of Bureau of Labor Statistics data by the American Health Care Association and National Center for Assisted Living, an industry group that represents nursing homes.
The industry group said in a statement the COVID-19 pandemic compelled nursing home workers "to risk their own lives to care for and protect our nation’s most frail and vulnerable."
"The public health response left them behind without the necessary resources or clear, accurate guidance to help stop the virus. It is absolutely vital to have protection from excessive lawsuits when staff were making good-faith efforts."
In Florida, Gov. Ron DeSantis in February signed a bill to extend COVID-19 liability protections to nursing homes and other health providers. Under the law, families must prove gross negligence or intentional misconduct by a nursing home or other health provider.
Florida Health Care Association CEO Emmett Reed said the legislation was pivotal to protect homes from "sue and settle lawsuit tactics" as the industry struggles to attract and retain caregivers.
"COVID-19 continues to wreak havoc on nursing centers and our heroic caregivers, as pandemic burnout has worsened an already challenged workforce," Reed said in a statement. "These liability protections reinforce support from our legislature and ensure that Florida's long-term care centers have the resources needed to continue providing high-quality care to Florida’s most vulnerable population."
'System failed us'
Beaty's son said his family sued the Pennsylvania nursing home where his father contracted COVID-19 to "help drive change" and stress the importance of keeping nursing home residents safe.
The younger Beaty, who is a director of nursing at a children's hospital in Delaware, believes it's important the nursing home industry reassesses practices that led to so many deaths.
President Joe Biden's administration last month signaled sweeping reforms to enhance staffing, safety and quality of nursing homes, including minimum staffing levels and improved oversight of infection control. The administration said it will carry out changes in several major categories in what would amount to the most ambitious plan to address nursing home quality and safety in decades.
The White House said Centers for Medicare and Medicaid Services will study staffing adequacy and propose new federal standards on minimum nursing home staffing ratios within a year. The White House cited a study that found bolstering registered nurse staffing 20 minutes per day was linked to 22% fewer COVID-19 cases and 26% fewer deaths.
Nursing home representatives say adding mandates effectively piles on an industry struggling to hire enough nurses at understaffed homes and facing mounting financial pressures from the pandemic.
“If the Biden administration implements minimum staffing thresholds, it could make a bad situation worse for nursing homes," said Mark Parkinson, president and CEO of the AHCA/NCAL, the nursing home industry group.
However, Beaty believes if minimum staffing and infection-control mandates were in place before COVID-19, "we probably wouldn't be having this conversation" about his father's death.
"The system failed us," he said. "People need to be held accountable to ensure facilities have the types of resources they need to provide safe and efficient care to all residents."
Ken Alltucker is on Twitter at @kalltucker, or can be emailed at alltuck@usatoday.com