Nursing Home Liability for COVID-19 Outbreaks

I hope this month’s article finds all of you well and thriving, or at least surviving in this time of our “new normal.” Who would have imagined that our lives and our law practices would be turned upside down and that “pandemic” would become a household word?

Like many other national disasters, such as 9/11 or Hurricane Katrina, heroes and villains emerge. Every day people are risking their lives to protect ours. Health care workers are running in to the burning building and are standing in the line of fire. So, should we hail them as heroes? ABSOLUTELY! But, just as there are heroes, there are also villains. Enter stage left, the nursing home industry.


Judge Dan Hinde

For years the nursing home industry has struggled with quality of care issues, yet it took a pandemic for these issues to come to the forefront of the nation’s attention. Residents of long-term care facilities were disproportionately the victims of abuse and neglect long before COVID-19.

A 2019 study using Medicare data revealed the scope of the problem. Out of a scale of 1 to 5 there was no state that had an average rating of 4 or above. The highest rating was Hawaii with a 3.93 and the lowest was Texas with a 2.68! In DFW alone, 58% of facilities have a 1-3 out of 5 overall rating.

The pandemic has only further exacerbated the existing issues in a troubled industry and sacrificed the most at-risk group of our fellow citizens. Nationally, at least 25% of COVID deaths are residents in long term care facilities. In Texas, the number is more than 33% and some have estimated upwards of 50% of all COVID deaths to be nursing home residents



Yes, more deaths could be expected among this elderly population due to their fragile health and close living quarters, but that does not justify how many residents are dying every day across the nation because of low quality of care problems rampant in the nursing home industry. Again, many lives could have been saved if existing issues were previously addressed by the nursing home industry when they should have been, rather than waiting for a pandemic to hit to be reminded of the issues that need to be fixed. At the end of the day, nursing homes have an obligation to maintain a certain level of care which many fell below a long time ago. This kind of unpreparedness has led to innumerable deaths and is inexcusable.

Instead of accepting blame for their own lack of preparedness, the nursing home industry is attempting to transfer their culpability onto the virus, and the perennial favorite… trial lawyers. How they can try and make themselves out as the victim is frankly, jaw dropping.

Litigating nursing home cases was never for the timid or faint of heart. Due to caps on non-economic damages, widespread creation of shell corporations, limited liability insurance coverage and offshore hiding of assets, these cases have always been challenging. Now, there are additional immunities and legal protections due to COVID-19.

However, in a breathtaking grab for power, the nursing home industry is calling for blanket, permanent, national immunity. Industry groups and others in Washington, are discussing more immunity and more legal protection than what has already been offered. The nursing home industry is sharpening their teeth and seizing this opportunity to make nursing homes appear as the victim, requiring a level of immunity that would be devastating to families who have been harmed or lost a loved one. So many of these COVID deaths were preventable and the industry knows it!

We cannot ignore all of these Covid deaths without using it as a rally cry for nursing home industry reform!

If there is any doubt about whether granting additional legal immunity to the healthcare industry is a good idea, all you have to do is look at “tort reform” in Texas. Preventable medical errors and health care costs have risen since various legislation was passed to protect health care providers. “Tort Reform” can certainly be credited with its successes, namely limiting patients’ rights and making health care less safe.

I hope and pray we don’t continue going down this same path. After all, as the old saying goes, “there but for the Grace of God, go I.” Kay Van Wey

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