As coronavirus casualties climbed last month, the Baker administration moved swiftly to shield health care providers and employees from a feared torrent of lawsuits stemming from their work on the front lines of the pandemic.
But a new Massachusetts law giving liability protection to institutions and workers — including volunteers — who are pivotal to battling COVID-19 is drawing criticism from plaintiffs’ lawyers and advocates for seniors. They say it extends blanket immunity to parties that should be held to account for their actions in the public health emergency.
“This is a time when institutions like nursing homes should be on their best behavior,” said William D. Kickham, a personal injury lawyer in Westwood. “This sends the message that if something goes wrong, they can’t be sued.”
Nursing homes are only one category of care providers covered by the new law, but they’ve loomed large as the coronavirus sweeps through Massachusetts. Many had previously been cited for infection-control deficiencies. And some homes have had massive COVID-19 outbreaks leading to dozens of deaths, prompting accusations by families that they were unprepared for the ferocity of the virus. The current crisis could make them an attractive target for lawsuits.
The measure to indemnify such facilities from liability, which Governor Charlie Baker signed on April 17, was classified as “an emergency law, necessary for the immediate preservation of the public health and convenience.”
It is one of about 15 state laws that have been adopted across the country in recent weeks — with support from different parts of the health care sector, especially physicians and hospital groups — immunizing care providers against civil liability for damages stemming from errors made in good faith during the ongoing crisis. Under the Massachusetts law, lawsuits are allowed to proceed only in cases of “gross negligence.”
While the law drew little attention when it was enacted, just nine days after it was proposed, Lieutenant Governor Karyn Polito spelled out the administration’s rationale in a statement: "Massachusetts is blessed to be home to some of the world’s best health care workers and institutions, and it’s important that the fear of liability does not prevent them from delivering the kind of medical response we need during this pandemic.”
The law applies to health care institutions ranging from acute care hospitals and mental health centers to rest homes and skilled nursing facilities to assisted living sites and home health agencies, as well as their employees.
Tara Gregorio, president of the Massachusetts Senior Care Association, a trade group for nursing homes, said the law doesn’t prevent the attorney general from investigating cases of negligence or seeking criminal penalties.
But she said it addresses “the potential for aggressive litigation, and potentially a lot of it, given the nature of COVID-19." Senior care operators have said they were hindered by events beyond their control, such as initial shortages of testing kits and protective gear.
But critics questioned whether the for-profit corporations that own many nursing homes and assisted-living facilities, which can afford malpractice insurance, should be shielded from liability. They said many senior care facilities deserve to face consequences for failing to adequately prepare for the coronavirus.
“The immunity gives the medical providers, the corporations that own and operate [them], a license to neglect,” said North Reading lawyer David Hoey. “Blame COVID for everything and get away with their poor practices. No accountability.”
Plaintiffs’ attorneys aren’t the only ones skeptical of the law. Arlene Germain, policy director of the Massachusetts Advocates for Nursing Home Reform, said she believes most senior care sites and their workers are trying to do their best under difficult circumstances. But she worries about the lack of scrutiny at a time when families of residents, and even state ombudsmen, are barred from visiting the facilities.
“Not having the ability to bring lawsuits takes away one of the checks on them,” Germain said. “It’s important now to have an extra set of eyes on these places, and they’re not there.”
Operators dispute the notion that the threat of a lawsuit would make them work harder to protect their residents; they say they are working doggedly to fend off the virus.
“I have not heard one discussion of lawsuits,” said Ron Pawelski, president of the Massachusetts Association of Residential Care Homes. “People are aware of [the law] that was put in place. But all of our focus is on ongoing vigilance to protect the health and welfare of our residents.”
The largest union of health care workers says the new law provides needed protection for workers fighting the pandemic.
“Health care workers continue to brush aside fear every day as they provide quality care under difficult and ever-changing conditions,” said Tim Foley, executive vice president of Local 1199 of the Service Employees International Union. “These added protections provides important assurances to health care workers on the front lines that their heroic efforts during this pandemic will not go unrecognized.”
The Massachusetts law exempts “gross negligence,” defined as “the absence of slight diligence or the want of even scant care” of people entrusted to the parties being sued. It’s a higher bar, but some lawyers think it can be met.
Plaintiff’s attorneys are already drumming up business among families affected by the nursing home outbreaks. In a May 1 e-mail to potential clients, Kickham, the Westwood attorney, listed Massachusetts nursing homes cited by the state Department of Public Health for having multiple COVID-19 cases. He urged people who aren’t satisfied by the state’s family resources hot line to “speak with a law firm that specializes in nursing home neglect or abuse.”
“We hold nursing homes, skilled nursing facilities, long-term care and assisted living facilities legally accountable when they fail to provide the standard of care due their residents and patients,” he wrote. “And we don’t take excuses.”
Another lawyer, Ted Bassett, a partner at the Worcester law firm Mirick O’Connell, said the Baker law is well-intentioned but absolves parties of their responsibility.
“Nursing homes should be held responsible if someone didn’t wear a mask or wash their hands,” Bassett said. “It doesn’t take a rocket scientist to know that’s reckless."