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Why Nursing Homes' COVID-19 Legal Shields May Interfere With Other Cases


In 27 states, nursing homes have gotten special legal protections during the COVID-19 pandemic. That means in most cases, families can't sue if someone they love got sick or died at one. The nursing homes say they're doing the best they can, and they need those legal shields. But that also may stop people whose injuries have nothing to do with COVID from seeking justice in the courts. Noel talked with NPR's Ina Jaffe, who's been looking into this.

NOEL KING, BYLINE: Why were these laws passed in the first place?

INA JAFFE, BYLINE: You remember that the coronavirus outbreak started, as far as most people were aware, in a nursing home. And currently, long-term care facilities account for more than a third of all deaths from COVID-19. Nursing homes were caught scrambling for personal protective equipment. There were shifting recommendations of how contagious the disease was. And the industry made a case that they shouldn't be held responsible for dealing with this moving target.

KING: Are there any lawsuits pending against nursing homes relating to COVID, or did these immunity laws basically finish them off?

JAFFE: Well, there is one in Durham, N.C. It's a question whether it's related to COVID. Possibly, it's the first of its kind. It involves the death of a woman named Palestine Howze. Her daughter Lisa Howze said her mother's death had nothing to do with the coronavirus. Her mother had a pressure ulcer or bedsore, as they're commonly known. She'd had it since December of 2018, and it just got worse and worse. It became infected. Lisa Howze said she begged Treyburn Rehabilitation Center to send her mother to the emergency room.

LISA HOWZE: But they assured us that they could handle it.

JAFFE: Lisa Howze and her three sisters had their doubts. In their experience, Treyburn Rehabilitation Center didn't seem to be able to handle much on a scale of one to five stars, the federal government gives Treyburn just one. It also gets below-average ratings on the ratio of nurses to residents. The government has fined Treyburn almost $190,000 in the past three years.

HOWZE: We were there a lot. And we found ourselves having to bathe her, just general things they were supposed to do. We've come in several times when she hadn't been fed, her tray just sitting there.

JAFFE: The Howze sisters head, and had a lot of luck with nursing homes in general. Treyburn was the third one they tried. But it was close to where they lived, so the sisters could visit often. But that hardly mattered when families were locked out of nursing homes in March. Everything got harder and took longer. Palestine Howze needed specialists in wound care and IV antibiotics. Lisa Howze had her mother's power of attorney. Again, she begged Treyburn Rehabilitation to send her mother to the emergency room, where they could find the specialist she needed. Again, she was turned down.

HOWZE: Their excuses were, well, the hospital's not taking new patients because of COVID. And she would be safer if she stayed here. And the facility is equipped to take care of your mother.

JAFFE: And none of those things turned out to be true. Palestine Howze died at Treyburn Rehabilitation Center on April 14, 2020. One month later, North Carolina passed a sweeping liability shield for long-term care facilities, meaning that nursing homes, with rare exceptions, were immune from lawsuits. The measure was made retroactive to March 10. Lisa House and her sisters decided to sue Treyburn anyway. Elizabeth Todd is their attorney.

ELIZABETH TODD: Palestine Howze did not have to die in that way or at that time. And for the legislature to say that the nursing homes need protection in the middle of a pandemic, not the nursing home patients, is outrageous, and it's unjust.

JAFFE: North Carolina's immunity law lasts until the pandemic is over. Todd is especially worried that the law gives a free pass to nursing homes with low staffing like Treyburn.

TODD: And so literally, the nursing homes can take their own understaffing, their chronic understaffing, and use it as a shield to prevent any liability at all during the COVID pandemic.

JAFFE: Through their attorneys, Treyburn Rehabilitation Center declined comment. But for many in the long-term care industry, these immunity measures are a welcome relief, says Dave Voepel, CEO of the Arizona Health Care Association. Arizona Governor Doug Ducey was among the first to sign an executive order granting nursing homes and assisted living facilities legal immunity.

DAVE VOEPEL: And for that, we applaud him because that just takes a little bit of pressure off.

JAFFE: Voepel says it allows facilities to focus on what's most important.

VOEPEL: We need to worry about keeping COVID out of the building.

JAFFE: But, sometimes, that cuts into the bottom line, says Voepel.

VOEPEL: Take, for instance, a 100-bed building. And they really have 50 rooms, two beds per room.

JAFFE: But to keep infection from spreading those double rooms may have to be converted to private rooms, so revenue is cut in half.

VOEPEL: It really takes its toll on the business side of the ledger.

JAFFE: Long-term care facilities face a crisis of existential proportions, says Mark Reagan, the attorney for the California Association of Health Facilities. That's because liability insurers are excluding all things COVID when they renew policies.

MARK REAGAN: Which would mean that any claims made regarding COVID infection would be subject to exclusion and no insurance coverage.

JAFFE: Congressional Republicans wanted a national immunity law but dropped it as part of the deal for the latest coronavirus relief package. Reagan still has hopes.

REAGAN: What we're merely asking for is that caregivers and their employers don't get punished for doing the best that they could under their circumstances.

KING: I imagine that the family of Palestine Howze doesn't, in fact, think the nursing home was doing the best it could for their mother.

JAFFE: Well, right. Their attorney, Elizabeth Todd, points out that one of North Carolina's immunity criteria is that a facility must be acting in good faith. And she doesn't see how Treyburn can argue that they did that.

KING: So where does this case stand now?

JAFFE: Well, Elizabeth Todd is now waiting to see if the case will be dismissed because of the immunity law or if Lisa Howze and her sisters will get their day in court.

KING: NPR's Ina Jaffe. Ina, thanks so much for your reporting.

JAFFE: Thank you.

(SOUNDBITE OF ERIK FRIEDLANDER'S "NIGHT WHITE") Transcript provided by NPR, Copyright NPR.

Ina Jaffe is a veteran NPR correspondent covering the aging of America. Her stories on Morning Edition and All Things Considered have focused on older adults' involvement in politics and elections, dating and divorce, work and retirement, fashion and sports, as well as issues affecting long term care and end of life choices. In 2015, she was named one of the nation's top "Influencers in Aging" by PBS publication Next Avenue, which wrote "Jaffe has reinvented reporting on aging."