Immunity for Long-Term Care Facilities During the Coronavirus Pandemic

A new report by the National Consumer Voice for Quality Long-Term Care (Consumer Voice) identifies 38 states, as of June 1, 2021, that since the coronavirus pandemic have either issued executive orders or passed legislation giving long-term care facilities immunity.[1] The report describes the immunity provisions and their exceptions and duration, explains why immunity is bad for residents of facilities, and includes a state-specific Chart.[2]

While these state actions are troubling, at least some courts are rejecting facilities’ defenses of immunity.

A federal district court in Illinois denied the nursing home’s motions to dismiss in two cases – Brady v. SSC Westchester Operating Co. LLC, case number 1:20-cv-04500 (N.D. Ill.), and Walsh v. SSC Westchester Operating Co. LLC, case number 1:20-cv-04505 (N.D. Ill.) – holding that the Governor’s Executive Orders do not give liability protection “to a private facility’s ‘willful misconduct’ under [Illinois Nursing Home Care Act] 20 ILCS §3305/21(c).” Although the judge finds that factual issues need to be resolved about immunity, he rules that “plaintiffs’ claims survive because they have plausibly alleged that Westchester engaged in willful misconduct, a term synonymous with [common law claims of] willful and wanton conduct.” 

Federal court decisions in New Jersey,[3] Kansas,[4] and Pennsylvania[5] have rejected facilities’ immunity defenses in the context of the federal Public Readiness and Preparedness Act (PREP Act). Plaintiffs had filed wrongful death cases in state court, alleging that the nursing facilities’ negligence during the coronavirus pandemic caused the death of the resident. Defendant nursing facilities removed the cases to federal court. The courts rejected the facility arguments, and remanded the cases to state court, finding that in these cases, plaintiffs had alleged that the nursing facility failed to use countermeasures and holding that the PREP Act’s immunity applies when an individual uses a covered “countermeasure.” As the Court holds in Sherod,

because Plaintiff's Complaint alleges that Brighton failed to provide decedent with any protection/countermeasures, Plaintiff's claims fall outside the purview of the PREP Act which purports to provide immunity to facilities like Brighton when a claim is brought against them for the countermeasures the facility actually utilized.

Despite plaintiffs’ success in these court cases, the existence of immunity provisions is likely to discourage other potential plaintiffs from filing lawsuits. Advocates continue to oppose immunity provisions at the state and federal levels.[6]

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[1] Consumer Voice, State Immunity Law and Executive Orders Relating to Long-Term Care Facilities, https://theconsumervoice.org/uploads/files/general/State_Immunity_Summary_Final.pdf.  The Center for Medicare Advocacy issued an early report about immunity, Nursing Home Industry Seeks Immunity During COVID Crisis; States Are Obliging (May 14, 2020), https://medicareadvocacy.org/wp-content/uploads/2020/05/Special-Report-Nursing-Home-Immunity.pdf; Alert (summarizing the report) (May 14, 2020), at https://medicareadvocacy.org/new-cma-report-nursing-home-industry-seeks-immunity-during-covid-crisis-states-are-obliging/
[2] https://theconsumervoice.org/uploads/files/general/State https://medicareadvocacy.org/new-cma-report-nursing-home-industry-seeks-immunity-during-covid-crisis-states-are-obliging/ _Immunity_Worksheet_2.pdf
[3] Estate of Maglioi v. Andover Subacute Rehab. Ctr., ___F.Supp.3d ___, 2020 WL 4671091 (D.N.J. 2020)
[4] Jackson v. Big Blue Healthcare, Inc., No. 2:20-CV-2259-HLT-JPO, 2020 WL 4815099 (D. Kan. Aug. 19, 2020)
[5] Sherod v. Comprehensive Healthcare Mgmt. Servs., No. 20cv1198 (W.D. Pa. Oct. 16, 2020)
[6] Consumer Voice, “Oppose Immunity for Long-Term Care Facilities During the COVID-19 Pandemic,” https://theconsumervoice.org/issues/issue_details/immunity