Covid-19 Nursing Home Neglect

May 11, 2020
Author: Jeremy Fietz

Earlier this year, TheLawFirm.com published an article warning the public that nursing home neglect during this Corona virus (Covid-19) pandemic would be more dangerous than ever. Nursing homes have a decades long history of abuse and neglect of our most vulnerable citizens and loved ones. Their glossy brochures are filled with promises of comfort and care and even make the home look like “fun” with daily activities and games. Unfortunately, many of these facilities spend too much of their budgets on getting their beds filled (“heads in beds” is actually an industry term because if there is a “head” in the “bed” the home is getting paid). Corporate nursing homes go to great lengths to squeak by with the bare minimum of underpaid and unskilled staff.

Unfortunately, now giant nursing home chains are spending their time and money lobbying the government for protection from their own negligence. Nursing homes are big business. Some chains are worth billions of dollars. Enough money to get the ear of politicians who need campaign donations and favors. These big chains know that their high profit, low budget, models lead to neglect of the elderly. Instead of taking less profit so that your loved ones are better cared for, they spend money trying to convince the government that they shouldn’t be sued even when their neglect of your loved one leads to needless suffering and death. That’s right – they are lobbying for total immunity even if they abuse your loved one.

And the worst thing? Some politicians are giving it to them. Patient and elder advocate groups are crying out against this immunity because it will give homes carte blanche to treat our vulnerable elderly like cattle, and “care homes” into “factory farms”. Massachusetts and New York have passed laws immunizing nursing home facilities. Without legislation, the governors in Connecticut, Georgia, Michigan and New Jersey have issued executive orders that immunize facilities.

There is a legal question, however, about whether a governor has the legal authority to take away legal rights. Remember, a right to a jury trial is guaranteed by constitution and generally, only a law passed by the legislature can grant immunity from a lawsuit.

Some states have issued laws intended to protect front-line health care workers from liability related to the pandemic. This makes sense – decisions in an emergency room should not be second guessed even when there is a bad outcome. Nursing homes, however, are not emergency rooms or ICUs. Nursing homes are residential care facilities that are supposed to bring your loved one to the hospital if they need emergent medical care.

Nonetheless, in those states providing immunity to front line health care workers, nursing home corporations are working to squeeze themselves under that umbrella to take advantage of the immunity.

Again, no one is saying that people should sue just because a loved one dies. Unfortunately, however, providing proper care in and of itself has been proven time and time again to not be a sufficient motivator for good nursing home care – especially by the big chain corporate nursing home companies. Only the threat of losing money has been proven to motivate these giant corporations to treat our loved ones better – to hire better staff, to maintain their facilities, to have safe policies and procedures in place, etc..

Giving a corporation immunity from their own negligence is a recipe for disaster for our vulnerable elderly. Hopefully, most state governments are not lobbied into this trap.

Jeremy Fietz, JD, LL.M. (Health Law)