Are New York nursing homes shielded from COVID-19 liability?

| May 14, 2020 | Medical Malpractice |

In late March, as the threat of the coronavirus became evident, a new provision was inserted into the state’s budget bill. Many lawmakers were unaware of it. It provides surprising new protections from liability for hospitals, healthcare facilities and nursing home operators.

New York was anticipating a surge of patients and needed to encourage facilities like nursing homes to take on sick patients and expand their capacity. The goal of the provision was apparently to shield healthcare workers from litigation in the time of an emergency, said aides for Governor Cuomo.

“This legislation is not intended to shield any bad-acting facilities during this tragic time, but rather to ensure facilities could continue to function in the face of potential shortages and other evolving challenges the pandemic presented,” said a Cuomo spokesperson.

The legislation may go farther than intended. According to the New York Times, the immunity from liability covers things like harm that occurred due to shortages in personal protective equipment (PPE) or staffing, but not gross negligence or criminal misconduct.

Yet the final effect of the bill is not yet known. Certainly, plaintiffs will sue nursing homes and other healthcare facilities that fail to act reasonably in the face of the virus. The law could, however, stop such lawsuits in their tracks.

At least 29,100 nursing home residents and staff have died from COVID-19 as of May 13. Nursing home lobbyists argue that the homes faced an unprecedented, unforeseeable emergency. They lacked access to test kits and PPE like gowns and masks. They say there was little they could do to limit the spread.

The emergency is real, and families of nursing home residents must be prepared to be reasonable. However, recent weeks have brought us stories of severe staffing shortages, dead bodies piling up in makeshift morgues and residents begging for help. Moreover, many nursing homes have been less than forthcoming with residents’ families about what steps they were taking to combat the pandemic and keep residents safe.

Furthermore, some nursing homes were not performing well even before the pandemic, but the usual systems for holding them accountable may no longer be working. For example, homes were always on notice in the past that visiting family members might drop by at any moment. And so might inspectors. Now, families’ and inspectors’ visits are on hold.

What should you do if your loved one has been neglected?

If your loved one’s nursing facility has failed to live up to its responsibility to provide reasonable care for its patients, do not assume that this law prohibits you from suing. Discuss your case with an attorney right away. There may be legal options open to you.