Legislators and Healthcare Providers Debate COVID Liability

Nursing homes in Connecticut have been largely shielded from liability since April of last year, when Gov. Ned Lamont passed two executive orders protecting healthcare workers and facilities like hospitals and nursing homes from lawsuits for “actions or omissions” related to the COVID response made “in good faith.” Lamont ended that legal immunity on March 1. 

Now legislators and healthcare providers are debating new legislation that would extend liability to nursing homes for a failure or negligence to comply with guidance from the Department of Public Health or National Centers for Disease Control and Prevention. The legislation, if signed into law, would allow lawsuits to be filed against nursing homes for incidents during the last year. 

State Senator Matt Lesser, D-Middletown, who supports the legislation, praised the governor for not extending immunity, but said the he disagreed with the grant of immunity from the start. “I think that it was a mistake. I thought it was a mistake at the time,” he said. “I think the evidence since then has done nothing, but bolster that opinion.”

Lesser said he has heard “horror stories” from his constituents about the conditions in nursing homes — sick people being placed in healthy wards, staff “wearing garbage bags” rather than personal protective equipment, objects transferred from patient to patient without being washed and misinformation given to family members. 

Connecticut is not alone in reconsidering grants of immunity. The American Bar Association reported that as of last July more than 26 states had granted nursing homes immunity from civil liability during the pandemic, but that some states are beginning to reconsider. 

Last week, for example, the New York State Senate repealed immunity provisions for healthcare facilities, but New York state law does not allow patients to sue retroactively.

State Rep. Matt Blumenthal, D-Stamford, said he supports the bill because it would give people who have lost a family member the ability to hold the nursing home accountable. The bill would also apply to the pain and suffering of residents who contracted COVID-19.

“I think it’s more the principle of the issue, there are folks that really feel robbed, and really feel wronged,” said Lesser.  

State Rep. Craig Fishbein, R-Wallingford, said he would support the legislation as long as there was a provision that gave protection to those who could prove they followed the guidelines of the Department of Public Health.

“Part of the problem there is we did have a significant number of deaths in nursing homes,” said Fishbein. 

Data from the Department of Public Health reports 14,004 cases of COVID-19 in nursing homes, out of a total of slightly more than 310,000 cases. Of the 7,885 deaths reported in the state, 3,866 were nursing home residents. 

Lesser said he didn’t believe that many people would bring lawsuits against nursing homes, nor does he think many judges will find them liable.

Nationwide,166 wrongful death lawsuits have been filed relating to healthcare or medical settings, according to the COVID-19 case tracker of Hunton Andrews Kurth, a law firm based in Richmond, Virginia. 

“I think it’s more the principle of the issue, there are folks that really feel robbed, and really feel wronged,” said Lesser.  

Matt Barrett, president and CEO of the Connecticut Association of Health Care Facilities, Inc. and Connecticut Center for Assisted Living, said the industry’s main objection to the legislation was a lack of clarity regarding which public health guidelines would be used for determining negligence. 

Nursing homes are in an unprecedented period of financial instability and insecurity,” said Barrett. “Any legislation that has the potential to increase nursing home costs … would be something that would be all pointing in the wrong direction.” 

The bill allows actions to be brought against nursing homes that failed to comply with any guideline issued by the Department of Public Health or the Center for Disease Control. But Barrett said that the guidelines have changed a number of times during pandemic and at times have been contradictory.

Barrett said he was also concerned about the financial implications of defending against lawsuits, and the potential that it could lead to higher insurance rates.

Nursing homes are in an unprecedented period of financial instability and insecurity,” said Barrett. “Any legislation that has the potential to increase nursing home costs … would be something that would be all pointing in the wrong direction.” 

“You’re a bad doctor” 

Rather than rolling back protections, doctors’ groups are instead pressing for other legislation that would write the executive orders into law.

Dr. Gregory Shangold, president of the Connecticut State Medical Society, said he was concerned that executive grants of immunity could be overturned by a court, unraveling the protections for medical professionals. Shangold said that having these executive orders written into legislation would provide a greater guarantee of protection. 

“A lot of people died from COVID,” said Shangold. “Just because there was a bad outcome doesn’t mean there was a deviation from a standard.” 

At a public hearing on May 31, Shangold asked that H.B. 5125 be extended to include members of the medical profession.  The legislation grant businesses and public agencies immunity if they can prove they have followed Department of Public Health COVID-19 guidelines.

“A lot of people died from COVID,” said Shangold. “Just because there was a bad outcome doesn’t mean there was a deviation from a standard.” 

Shangold said that there was a lot of confusion at the beginning of the pandemic, including different information coming from different places, as well as a lack of ventilators and available testing. Full hospitals and emergency rooms meant that doctors had to make rapid decisions about treatment. 

“It really does distract and take a toll on physicians, to have a lawsuit,” he said. “It’s really one of the hardest things to go through as a physician, because somebody is telling you, ‘You’re a bad doctor.’”

The Connecticut Hospital Association also submitted testimony asking that the protections for medical professionals be written into law — a step supported by a variety of medical organizations representing podiatrists, radiologists, counselors, anesthesiologists and others.

Shangold said he wasn’t aware of any lawsuits that had been brought in Connecticut. “I wouldn’t want to wait until there were lawsuits,” said Shangold. He also pointed out that the pandemic isn’t over and the standard for treatment remains in flux.

“Studies and literature and treatment are still working on being developed,” he added. “The ‘standard’ is still a moving target.” 

“It really does distract and take a toll on physicians, to have a lawsuit,” he said. “It’s really one of the hardest things to go through as a physician, because somebody is telling you, ‘You’re a bad doctor.’”

State Rep. William Petit, R-Plainville, who is also a physician, said he believed some protection was a good idea given that the field’s understanding of the virus was constantly changing. 

“It’s still evolving as the field moves along. It’s really difficult to be on the cutting edge,” he said. “I don’t think anyone’s suggesting protecting against gross negligence.” 

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