‘There are no checks and balances:’ Families, advocates press for repeal of legal immunity for nursing homes, hospitals
In September, Sen. Cathy Osten watched as a nursing home in Norwich, in the heart of her district, emptied its 53 remaining residents after the state ordered the building evacuated.
Twenty-seven people had contracted COVID-19 at the Three Rivers Healthcare Center and four died in one of the biggest nursing home outbreaks over the summer, even as the rate of new cases in most facilities statewide had slowed. Osten fielded calls from worried families as the remaining residents were transferred to other nursing homes.
“The people that I have talked to who had family at Three Rivers believe there should be a mechanism for holding nursing homes accountable,” she said.
But one key way of holding the facilities accountable – financial recourse in the state’s courts – has been largely off the table since the pandemic began. Gov. Ned Lamont issued an order shielding nursing homes and hospitals from lawsuits, except in cases of “crime, fraud, malice, gross negligence or willful misconduct.”
The legal immunity initially ran from April 5 to Sept. 9. Lawmakers in early September said they wanted to have a conversation with the governor about whether it should remain in place. Lamont extended the immunity through Nov. 9, saying he would meet with legislators and industry officials about the future of the mandate.
Then last week, the governor signaled he may extend it again. The order is set to expire on Monday.
“My instinct is, right now, given all the complexity in and around a second round of COVID, I’d be inclined to extend that immunity,” he told reporters during a news conference.
His spokesman, Max Reiss, later added: “We had a discussion with stakeholders, and we’re continuing discussions now about the future of that executive order.”
But advocates, family members and elected officials are warning against another extension, saying the immunity strips away a fundamental protection for residents and weakens accountability for nursing home operators.
“Residents and their families continue to be disappointed in the state’s failure to properly protect the most vulnerable,” said Senate Minority Leader Kevin Kelly, R-Stratford. “Ending legal immunity … is their only shot at accountability.”
Nursing home leaders and the heads of several state medical groups say the immunity is critical, however. With federal guidance shifting rapidly, the protection allows front line workers to do their jobs without fear of legal retribution.
Twenty-five organizations, including the Connecticut State Medical Society, Connecticut Hospital Association, LeadingAge Connecticut and the Connecticut Association of Health Care Facilities, jointly sent a letter to Lamont urging him to extend the immunity. They also asked the governor to broaden the mandate to include protections for assisted living service agencies, emergency medical service organizations, home health care and hospice groups, and dialysis treatment centers.
“During catastrophic disasters such as this one, uncertainty about legal liability can discourage the delivery of care in this way and can impede the provision of public and private health care services during a response,” they wrote. “The immunity safe harbor … continues to encourage individuals and organizations to provide creative and innovative services to save lives without the fear of damaging their organizations’ ability to survive after the emergency is over.”
“The public health crisis is not over,” they added, “and an immunity safe harbor is still essential for the orderly delivery of health care and related services during the pandemic.”
COVID-19 infections and deaths in nursing homes are on the rise again. As of Nov. 3, the most recent data available, 9,307 residents had contracted the disease and 2,948 had died. Nursing home deaths represent 64% of the state’s total coronavirus related fatalities.
Judy Jencks, whose 92-year-old mother resides in a Colchester nursing home, said the immunity makes her uneasy.
“Any time there are no checks and balances in an area, it concerns me,” she said. “When you have immunity there, you have eliminated a huge part of that checks and balances.”
“I think the immunity really affects the corporations that dictate the policy that happens in individual nursing homes,” she added. “So, if the corporation has immunity, it’s: ‘We’ll get around to this when we get around to it.’”
A day after Lamont made his comments to reporters about another possible extension of the order, officials with the AARP in Connecticut wrote to the governor urging him to do the opposite.
“It is essential that long-term care providers, as well as health care providers more broadly, remain responsible for any negligent actions to ensure long-term care residents have some protection and opportunity for redress,” Nora Duncan, the state director of the local chapter, wrote. “We are well past the point in this pandemic where it is appropriate to grant nursing homes civil immunity.”
Duncan noted that it is difficult to pursue a case of neglect or abuse in court.
“No family member who has lost a loved one due to neglect or abuse pursues this course of action lightly,” she said. “It is always an option of last resort, but it must remain an option.”
Advocates say most workers in nursing homes and hospitals do their best regardless of whether the facilities are immune from lawsuits. But legal recourse still helps discourage bad actors, they said.
“People who are bad clinicians are going to perhaps be worse clinicians. They’re going to make more serious mistakes or more of them,” said Lisa Freeman, executive director of the Connecticut Center for Patient Safety. “I think it will heighten the pitfalls in the system. Our court systems are there to fairly work this all out, and I just don’t think that recourse should be taken away from people.”
At the height of the pandemic, Connecticut was one of at least 20 states to impose an immunity order. But in recent months, some states have rolled back that protection.
Nationally and in Connecticut, advocates and attorneys have questioned why the protection extends not only to health care workers but also to nursing homes and their operators.
“Your administrators might not put all the necessary financial resources in place by having the appropriate staff or the appropriate protective equipment if they don’t have this component that is holding them accountable,” Osten said.
The governor’s office said it will make a decision in the coming days about whether to extend the immunity.
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