The pandemic has impacted West Virginia’s nursing homes harder than any other sector. West Virginia AARP reports that nearly 700 of the over 2,300 deaths were long-term care residents and staff.
The West Virginia Legislature is now considering whether those nursing homes, as well as every other health care provider and business in the state, should be protected from lawsuits because of the pandemic.
The Senate has already passed SB 277. The bill provides blanket immunity for any claim against “any person, essential business, health care facility, health care provider, first responder or volunteer for loss, damage, physical injury or death arising from COVID-19, COVID-19 care, or impacted care.”
Senate Judiciary Committee Chairman Charlie Trump (R, Morgan) argued the protection is necessary. “This is a global pandemic, and it requires extraordinary measures and responses in a lot of different ways,” Trump said.
Not everyone agrees.
AARP State Director Gaylene Miller said in a letter to House of Delegates leaders that while “many facilities performed admirably under tough conditions, it is clear other facilities endangered their residents, including some that had long-term understaffing problems and lack of infection control prior to the pandemic,” Miller wrote. “Those facilities should not escape culpability for harming their residents.”
This debate is occurring across the country. Most states have adopted some form of liability protection, but they often leave an option for litigation for the most serious cases. The American Bar Association Journal reported a few months ago that courts are going to be in a difficult position.
“They will have to decide whether and how to apportion responsibility for deaths of the nation’s most medically vulnerable population among long-term care operators who were scrambling in the midst of the chaos and confusion during the worst public health emergency in the century,” ABA Journal reported.
Lawyers are already pursing COVID-19-related suits across the country. According to a litigation tracker by the law firm of Hunton Andrews Kurth, over 8,800 COVID-19-related complaints have been filed, including six in West Virginia, and there will be more to come.
Successful mass litigation could devastate elder care in this country. Each death is a personal tragedy, but not every death was the result of someone’s negligence. The novel virus raged out of control for months, health advisories shifted, personal protective gear was in short supply.
SB 277 as it came out of the Senate, with its wholesale blanket immunity, is too broad. The House needs to find some way to allow for litigation where there are instances of intentional misconduct, but not create legal problems for nursing homes and other businesses that did the best they could during an unprecedented event.