They are our parents and grandparents. They raised us and made this country what it is. And in nursing homes and other long-term care facilities in Massachusetts, more than 3,500 of them have already died of COVID-19.
Yet their caretakers are essentially off the legal hook, thanks to a bill signed into law last month by Governor Charlie Baker.
Baker is moving cautiously to reopen the state. But when it comes to protecting the nursing home industry, he moved swiftly and boldly. Baker filed legislation on April 8, saying it was necessary to protect health care workers and facilities from an unprecedented health care challenge. The bill flew through the House and Senate and was signed into law on April 17. As other such state laws passed around the country, the Massachusetts law protects the nursing home industry and hospitals from civil liability for injuries to patients during the coronavirus crisis.
As Baker said during Monday’s press briefing, Massachusetts is one of the top five states in the country when it comes to being hit by COVID-19. Those who died in nursing homes account for 60 percent of the deaths — double the national average. On one hand, Baker is pledging to get to the bottom of horror stories, like the one that unfolded at Holyoke Soldiers’ Home, where 74 residents died of the coronavirus. But with the new immunity law, legal accountability for those and other nursing home deaths will be harder to come by.
Greg Vanden-Eykel, a medical malpractice lawyer who represents nursing homes, among other clients, said the new law provides “potential protection,” not blanket immunity. For example, it does not apply to conduct that is found to constitute gross negligence, recklessness, intentional harm, or discrimination. But some legal protection is needed, he said, because “in these unprecedented times, these health care providers are treating patients at levels no one could ever see. For policy purposes, it’s best to encourage the focus on what’s the best treatment, not on ‘oh my gosh, I made a mistake, now I might get sued.’”
But William D. Kickham, a lawyer who represents plaintiffs in neglect and abuse cases, calls the legislation “outrageous and an abandonment of the weak and the voiceless.” According to Kickham, one of the most outrageous provisions is the immunity granted if there’s evidence of under-staffing. “To carve out a special interest exemption for liability and expose the weakest and most vulnerable of our citizens to any type of injury is unconscionable,” he said.
How does the unconscionable happen? The quick and easy answer is industry lobbying, backed up by political contributions. For sure, the nursing home and health care industry does plenty of that. But the problem is bigger, and isn’t limited to Massachusetts.
“The chickens have come home to roost,” said Philip Johnston, a health care consultant and one-time state secretary of health and human services, who also served as New England administrator of Health and Human Services for the Clinton administration. National chains have taken over many local long-term care facilities. Caregivers receive low pay, and often move between facilities, which means they can carry infections from one place to another. “The system revolves around under-trained and under-paid staff doing the best they can to deal with an infectious disease they’re not equipped to handle,” said Johnston.
In Massachusetts, those systemic vulnerabilities were exacerbated as policy makers focused on hospitals, out of fear they would be overwhelmed by a surge of COVID-19 cases. “Elderly and disabled people did not receive the attention they deserved at the beginning,” said Johnston. As a result, nursing homes were overwhelmed.
All those deaths later, “It’s very difficult to understand why providers should receive legal protection if they didn’t provide safeguards for the health of the patients," said Johnston.
Difficult it may be to understand. But today, that’s the law in Massachusetts.