COVID-19 Nursing Home Lawsuit Protections: Early 2021 State Updates

Source: iStock

Last year MedTruth covered the controversial enactment of state laws and regulations protecting nursing homes from COVID-19 related lawsuits. Roughly half of all states filed some form of nursing home protection law, or a more general business protection law that covers nursing homes in 2020, Law.com reports.

Now, at the beginning of the pandemic’s second year, MedTruth is providing updated information about these protections.

In the first two weeks of 2021, Alaska, Florida, Indiana, Kentucky, Montana, Nebraska, and Wisconsin all introduced bills designed to extend or renew previous COVID-19 lawsuit protections put in place last year, as reported by Law360.

State Efforts to Increase COVID-19 Nursing Home Lawsuit Protections

  • Florida: House Bill 7 and Senate Bill 72 are identical pieces of legislation that will provide immunity for businesses that can prove they made a “good-faith” attempt to prevent infection.
  • Kentucky: SB 5 has been introduced which would limit the liability of all businesses, including nursing homes, who have had COVID-19 exposure and infection in their business.
  • Wisconsin: A.B. 1 would grant broad immunity to businesses, schools, and groups who have not intentionally or recklessly contributed to the spread of the virus.
  • Arizona: Gov. Doug Ducey extended an executive order protecting businesses, including nursing homes, from legal liability
  • Alaska: A K H 4 extends protection “immunity from liability and disciplinary action” for businesses and their employees who may have exposed others to COVID-19
  • Indiana: IN S 1 bill provides immunity from lawsuits for businesses, and their IN HCR 2 bill ends the state of emergency in the state declared by the governor to combat COVID-19.
  • Nebraska: NE L 52 states that “No person shall be liable in any civil action for any injury or death resulting from an alleged exposure to COVID-19 if such exposure occurred after the effective date of this act.” The effective date was not specified in the text.
  • Montana: The extension was not made publicly available by the National Conference of State Legislatures, but is similar to the state’s 2020 resolution to protect businesses from COVID-19 liability.

Michigan Governor Reverses Course on COVID-19 Lawsuit Protections

Michigan Gov. Gretchen Whitmer has rejected plans to introduce legislation to protect nursing homes from liability that would have expanded protections that expired in July 2020. This stance is a reversal from Michigan’s previous decision to enact a series of lawsuit protections.

Understanding Nursing Home COVID-19 Lawsuits: Negligence vs. Gross Negligence

Negligence, under the law, is understood to be the standard of care that a “reasonable individual” would take in a similar situation. Nursing homes may be charged with negligent behavior for failing to maintain proper staffing levels, failing to provide personal protective equipment, or failing to screen visitors for signs of possible COVID-19 infection.

On the other hand, “gross negligence” is a higher legal standard that is not covered by these nursing home-friendly laws. Gross negligence refers to actions involving willful and/or reckless disregard for patient safety.

Examples of gross negligence could include:

  • Nursing home management downplaying the severity of the pandemic
  • Nursing home staff failing to isolate infected patients
  • Demanding sick workers come in anyway
  • Ignoring federal or state recommendations on proper infection containment efforts

For more information on how to spot and combat nursing home abuse in the age of COVID-19, contact the Department of Justice’s Elder Justice Initiative or the National Center on Elder Abuse.

By James Parker

James Parker is a fact-checker from Coral Springs, Florida. He majored in Communication and Media Studies at Stetson University, where he spent much of his time examining the role of optics in various fields. When not covering the latest medical or legal development, James works on personal writing projects and board game design.

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