BY CARMA HENSON
North Carolinians who suffer harm while seeking health care during the COVID-19 pandemic will have limited recourse to be made whole by the legal system, thanks to language included in the COVID-19 bill passed by the General Assembly and signed by Gov. Roy Cooper on May 4.
At the request of several health care advocacy groups, the 70-page omnibus bill included an immunity clause that addresses the needs of health care providers and owners of health care businesses but strips patients of the protections normally available to ensure that appropriate care is delivered.
The North Carolina Advocates for Justice worked tirelessly to help narrow this language, while still protecting those serving on the front lines during a pandemic. NCAJ agrees with the need to help front-line health care workers. However, the immunity provided in Senate Bill 704 extends beyond front-line health care workers to provide cover to those in the boardroom, those who make the decisions that directly affect the lives of patients and front-line workers.
With no recourse against bad actors, North Carolina’s most vulnerable citizens are at increased risk of neglect or abuse by companies that might relax standards of care based on their business needs rather than the best interests of their patients. The ability to ensure that even the most basic standard of care is delivered, such as ensuring that residents are kept clean and are fed, and that nursing homes are using appropriate infection control measures to prevent the spread of this pandemic, is now unachievable due to this legislation. It is disturbing that the law now offers protection for the bottom-line interests of businesses, some of which are outside of North Carolina, over our own citizens and family members here in North Carolina.
Under the broad language of the Senate Bill 704:
- The immunity is granted to essentially all health care providers: nursing homes, adult care homes (assisted living facilities), hospitals, doctors, dentists, surgeons, pharmacists, optometrists, midwives, podiatrists, osteopaths, chiropractors, radiologists, nurses, physical therapists, pathologists, anesthesiologists, physician assistants, laboratory analysts, dental hygienists, psychiatrists, psychologists, emergency medical services personnel and any health care facility administrator, executive, officer, director, supervisor, board member, trustee or any person in a managerial role or comparable role at a health care facility.
- The immunity is not limited specifically to COVID-19 related medical care or treatment. It protects any medical provider who provides “care to any other individual who presents or otherwise seeks care at or from a health care facility or to a health care provider during the period of the COVID-19 emergency declaration.”
- The immunity will apply if the arrangement or provision of the care was impacted, directly or indirectly, by COVID-19.
The bill does state that the immunity will not apply if the harm or damages were caused by an act or omission constituting gross negligence, reckless misconduct, or intentional infliction of harm by the health care services. However, that provision is essentially nullified as it relates to nursing homes by the inclusion of the next phrase, which reads: “provided that the acts, omissions, or decisions resulting from a resource or staffing shortage shall not be considered to be gross negligence, reckless misconduct, or intentional infliction of harm.”
Even before COVID-19, some nursing home corporate owners routinely made the business decision to understaff their facilities in order to increase their profits. This decision was made with full knowledge that adequate staffing is the most important factor in ensuring that good care can be delivered to the residents. The intentional decision to understaff, knowing that doing so was likely to lead to harm even in the pre-COVID world, was arguably gross negligence, reckless misconduct or intentional infliction of harm. As a result of Senate Bill 704, nursing home owners now have no incentive to ensure that their facilities are adequately staffed, as that fact, by law, cannot be used against them in a court of law.
In North Carolina’s nursing homes alone, more than 375 residents had died of COVID-19 as of May 22, and reports of blatant disregard for standards of care are alarming. Suits have been filed on behalf of grieving families in some of these cases, but plaintiff’s attorneys are already having to make heart-wrenching decisions to turn down cases due to the language of the law.
North Carolinians are not alone in this. Similar immunity language is being pushed into similar omnibus bills in state legislatures across the country. According to The New York Times, New York, New Jersey, Massachusetts, Utah, and Wisconsin have also passed new measures to shield health care facilities from liability. The Times also reports that governors in at least nine other states—Arizona, Connecticut, Hawaii, Illinois, Kansas, Michigan, Mississippi, Rhode Island, and Vermont—have issued executive orders shielding health care facilities from most lawsuits related to their response to the pandemic, and nursing homes are pressing for legal protections in Florida, Pennsylvania, and California.
This despite poll numbers from a recent Hart Research Associates survey that finds bipartisan opposition to providing this kind of immunity to companies from lawsuits related to COVID-19. Among 1,200 voters asked in early May, 64 percent opposed guaranteed immunity from COVID-19-related lawsuits and three in five believe immunity will result in more people getting the virus.
The effects of protecting business interest to the detriment of vulnerable individuals will be far-reaching. For those who seek health care services—whether related to COVID-19 or not—during this pandemic, we regret that you must do so without the protection under the law that you deserve.
Carma Henson is a former chair of the North Carolina Advocates for Justice Nursing Home Litigation Section. She is a partner in the Raleigh-based firm HensonFuerst.