Delaware nursing homes, hospitals ask Carney for immunity from COVID-19 lawsuits
Delaware nursing homes and hospitals are asking Gov. John Carney to grant them immunity from lawsuits related to the coronavirus pandemic.
If the governor signs an executive order, it could leave little legal recourse for families and patients who feel they have been wronged by these providers, experts and advocates said.
At a time when COVID-19 deaths continue to climb in nursing homes, more than 20 states have granted some type of immunity to these providers — often through an executive order.
Here in Delaware, nursing homes and assisted living communities have been hit the hardest by the virus. More than 60% of deaths in the state have been related to long-term care.
These facilities often house the oldest and sickest, and social distancing can be nearly impossible. Significant staffing shortages, lack of testing and not enough personal protective equipment made the effort even more challenging.
It’s unclear if Carney will grant immunity. When asked if the governor supports the idea, spokesman Jonathan Starkey wrote in an email that Carney and “his public health team remain focused on protecting the health of residents and staff of long term care facilities through universal testing.”
“We need everyone to lean into that effort,” Starkey wrote.
Wayne Smith, president and CEO of the Delaware Healthcare Association, said hospitals have been talking to the Carney administration about the idea of immunity for more than two months.
The pandemic has created certain operational challenges for health systems, Smith said, particularly with hospital workers conducting testing in the community and going into nursing homes to help provide care.
In the early weeks of the coronavirus, Delaware hospitals deferred non-critical procedures in order to make sure there was enough capacity in case there was a surge of COVID-19 patients.
This, Smith said, creates a “potential liability situation” for the hospitals, especially if the conditions of non-coronavirus patients, who had to postpone procedures, have worsened.
Cheryl Heiks, executive director of the Delaware Health Care Facilities Association, said in a statement that long-term care providers are asking the state for immunity “in light of the unprecedented events these last few months.”
“Many of our seniors and their families rely on long-term care facilities in Delaware and the fear is lawsuits may cripple this industry, resulting in dire consequences for those that need this care,” she said.
The Delaware Healthcare Association is hoping to have an executive order similar to those in Connecticut and Virginia. Smith said these orders have “short and sweet” language that would grant facilities and providers immunity from simple negligence lawsuits stemming from the pandemic.
It would not stop patients and their families from filing lawsuits for egregious allegations, such as gross negligence, he said.
John Culhane, a law professor at Widener University, said it is very difficult to prove gross negligence in lawsuits against health care providers.
“Unless the facts kind of make you sit up and take notice,” he said, “they are really always simple negligence cases.”
If this immunity is granted to hospitals and health systems, Culhane believes patients and their families will have few legal options. It’s possible, he said, that people with claims of gross negligence — or worse — won’t file lawsuits because they will feel “the line is too difficult to draw.”
Some advocates in Delaware believe granting immunity could strip patients of their rights.
In a June 2 letter to the governor and health secretary, AARP Delaware State Director Lucretia Young expressed her “strong opposition" to any proposal that grants immunity to long-term care facilities.
“Nursing homes and other LTC facilities," she wrote in a letter obtained by Delaware Online/The News Journal, "should know they will be held responsible for providing the level of quality care that is required of them, and for which they are being compensated.”
Young wrote that there are “fewer eyes observing what is happening in facilities," especially because family members are prohibited to visit in most circumstances.
“This lack of oversight is alarming," she wrote, "and requires us to ensure that, when all else fails, residents and their families will still have access to the courts to seek redress.”
Lauren Cirrinicione, a Wilmington lawyer who specializes in nursing home negligence, said families have reached out to her firm in recent weeks regarding nursing homes.
These vulnerable residents rely on facilities to provide the structure and the tools for doctors and nurses to give proper care, Cirrinicione said.
“If the facility was understaffed,” she said, “if the facility was under-supplied, and if you have family members who are unable to inquire or see what’s going on, it’s really creating an environment for abuse or neglect.
“And if there is immunity, you’ve effectively taken rights away from this population.”
Contact Meredith Newman at (302) 324-2386 or at firstname.lastname@example.org. Follow her on Twitter at @merenewman.