In early 2020, when news of COVID-19 outbreaks was causing alarm, Trever Schapers found herself deeply concerned about her father’s well-being in a nursing home located in Queens.
In February, at the West Lawrence Care Center in New York City, she watched with joy as her father, John Schapers, blew out the candles on his 90th birthday cake. However, shortly after, the care center went into lockdown.
In May 2020, her father tragically passed away. He was a former union painter who contracted COVID-19 and was admitted to the hospital after developing a fever. Unfortunately, after two weeks on a ventilator, he succumbed to the virus.
In 2022, Trever Schapers filed a lawsuit against the nursing home, alleging negligence and wrongful death. However, the case was dismissed by a judge, who cited a New York state law that was quickly enacted during the early stages of the pandemic. This law granted immunity to medical providers in cases involving “harm or damages” resulting from their actions or omissions in providing COVID-related treatment or care arrangements. Trever Schapers is currently appealing the judge’s decision.
“I believe that judges and courts are neglecting the concerns of families, failing to acknowledge the necessity for action and change,” expressed Schapers, a 48-year-old professional in the medical field. “There must be a sense of accountability.”
The nursing home declined to respond to requests for comment. In a court filing, the home contends that Schapers did not provide any evidence to support the claim that the home had been “grossly negligent” in its treatment of her father.
Hundreds of lawsuits alleging patient deaths due to negligent care in U.S. nursing homes have either been dismissed or are still pending in the courts, after more than four years since the initial outbreak of COVID-19. These legal battles have caused delays and disputes among the parties involved.
Court records show that even nursing homes that were closed down by health officials for violating safety standards have claimed immunity against such lawsuits. Additionally, some families who accuse nursing homes of withholding information about the health of their loved ones, including denying the presence of COVID-19 cases in the facility, have had their cases dismissed.
In a complaint filed with state health officials, Schapers claimed that the nursing home neglected to inform her about the admission of COVID-positive patients from a nearby hospital in March 2020. It was only in early April that she received a phone call, informing her about the presence of COVID-positive residents in the facility.
She expressed her concern about the call, stating that it was quite alarming and the person on the other end avoided answering any of her inquiries.
According to Schapers’ complaint, about two weeks later, a social worker contacted her to inform her that her father was experiencing a fever. However, the staff did not conduct any COVID tests to confirm the diagnosis.
According to the industry, medical providers have been granted extensive protection from lawsuits by federal health officials and lawmakers in most states for their good-faith actions during the health emergency. Rachel Reeves, a senior vice president with the American Health Care Association, described COVID as “an unprecedented public health crisis caused by a vicious virus that specifically impacted our population.”
Family members have filed numerous lawsuits, claiming that nursing homes neglected to provide adequate protective gear and testing for both staff and residents. Additionally, they allege that nursing homes carelessly mixed COVID-positive patients with others, disregarded infection control protocols, and deliberately misled families about the extent of COVID outbreaks within their facilities.
Florida attorney Lindsey Gale, who has represented multiple families suing over COVID-related deaths, expressed her disappointment in the facilities that were entrusted to take care of loved ones. She emphasized that this trust was ultimately betrayed, highlighting the severity of the situation.
“The experience of going through the grieving process was absolutely devastating,” Gale lamented.
A deadly toll
This Article Includes
According to KFF Health News, nursing homes faced over 1,100 lawsuits related to COVID-19 between March 2020 and March of this year. These lawsuits predominantly accused nursing homes of wrongful death and negligent care.
There is no comprehensive record of the results, but court documents reveal that judges have dismissed certain lawsuits entirely by invoking state or federal immunity provisions. In other instances, cases have been resolved through confidential settlements. Many lawsuits have also been delayed and hindered by protracted and expensive debates and appeals aimed at determining the extent, if any, of immunity protection.
Nursing homes initially justified their actions by referring to the federal Public Readiness and Emergency Preparedness Act passed by Congress in December 2005. This law provides protection from liability claims for deaths or injuries related to vaccines or medical countermeasures used to prevent or treat diseases during national emergencies.
The PREP Act comes into effect when the secretary of Health and Human Services declares a “public health emergency,” as was the case with COVID on March 17, 2020. The emergency order expired on May 11, 2023.
Proving “willful misconduct” can be a daunting task for families, even when nursing homes have a history of violating safety standards, including infection controls. The law has made an exception for such misconduct, but it remains challenging to establish its occurrence.
At least 38 states’ governors have issued COVID executive orders or passed laws granting medical providers some level of immunity, according to a tally by a consumer group. The extent of legal protection intended is the main point of contention in these disputes.
Nursing homes have found a way to address negligence lawsuits by transferring them from state courts to the federal judicial system. They have been able to request dismissal under the PREP Act in order to resolve these lawsuits.
Federal judges, for the most part, refused to hear these cases, resulting in limited success. Some judges determined that the PREP Act was not designed to protect healthcare providers from liability due to inaction, such as the failure to adequately safeguard patients from the coronavirus. Consequently, these rulings and subsequent appeals led to the transfer of cases back to state courts, causing significant delays and leaving affected families in a state of legal uncertainty.
“These delays have caused immense devastation,” expressed Jeffrey Guzman, an attorney from New York City who represents Schapers and other affected families. Guzman further emphasized that the industry has vehemently opposed, with great determination, the efforts of these individuals to have their grievances addressed in a court of law.”
Empire State epicenter
New York, the epicenter of the early and severe impact of COVID-19, has become the focal point for legal battles surrounding nursing home immunity.
According to court data compiled by KFF Health News using the judicial reporting service Courthouse News Service, there have been over 750 negligence or wrongful death cases filed by relatives of residents in New York counties since the beginning of the pandemic. This number far surpasses any other area.
Cook County in Chicago, a jurisdiction known for its proactive approach to holding nursing homes accountable for inadequate infection control, has reported a total of 121 COVID-related cases.
Plaintiffs in hundreds of New York cases are claiming that nursing homes were aware of the deadly threat posed by COVID early in 2020 but largely failed to prepare for its impact. Numerous lawsuits reference inspection reports that highlight long-standing violations of infection control standards in the years leading up to the pandemic, according to court records. The response to this legal strategy varies among different parties involved.
According to Joseph Ciaccio, a New York lawyer who has handled numerous cases of this nature, there is a wide range of opinions among judges. “Different judges take different views,” he stated. “It’s been very mixed.”
Lawyers representing nursing homes argue that the majority of lawsuits are based on ambiguous accusations of misconduct and generic claims that, even if proven, do not establish the level of severe negligence necessary to invalidate an immunity claim.
Appeals courts have determined that negligence cases have been hindered due to lawmakers not specifying that the repeal should have retroactive effect.
Troubled homes deflect suits
In February 2022, the facility was fined $220,235 by federal health officials following a critical 36-page report on COVID violations and other deficiencies. As a result, the state halted admissions.
The home has successfully obtained court delays in several negligence lawsuits while it appeals the lower-court decisions that denied immunity under the federal PREP Act. According to court records, the operators of the home were unavailable for comment, but they have denied any wrongdoing in their court filings.
Oregon health officials have taken action against Healthcare at Foster Creek, a nursing home in Portland, due to serious concerns regarding public health and safety. The facility’s operations have been suspended after it was found to have consistently failed to comply with basic infection control standards. This decisive measure was taken in May 2020 to address the significant risks posed by the nursing home.
Bonnie Richardson, a lawyer from Portland, filed a lawsuit against the facility on behalf of the family of Judith Jones, a 75-year-old woman who suffered from dementia and passed away in April 2020. Jones was one of the many individuals who lost their lives due to COVID-19 at that particular nursing home.
“It was a challenging battle,” stated Richardson, who eventually resolved the case through confidential negotiations. Despite the nursing home’s assertion of immunity, her clients were determined to uncover the truth and gain clarity. The owners of the nursing home declined to offer any comment.
No COVID Here
According to a court affidavit, one woman became concerned after her visit in February 2020 when she noticed nurses wearing masks “below their noses or under their chin.”
In her affidavit, the woman expressed her shock upon learning from the home that her mother had passed away in April 2020. The cause of death was unknown, speculated to be related to depression and lack of nourishment.
Shortly after, news outlets broke the devastating news that numerous residents at Sapphire Center had succumbed to the virus, including her 85-year-old mother, as she passionately stated in her lawsuit.
The nursing home, after invoking the New York immunity law, successfully defended against all five lawsuits and denied any responsibility. Although some families are appealing the decision, the administrator of the nursing home declined to provide any further comments.
Broadening immunity
Court records reveal that nursing home operators have used immunity as a defense to protect themselves against negligence lawsuits related to falls or other claims of substandard care, such as bedsores. These lawsuits often have little direct connection to the pandemic.
The Watrous Nursing Center in Madison, Connecticut faced a negligence lawsuit from the family of Marilyn Kearney, an 89-year-old with a “history of dementia and falls.” Court documents revealed that just days after her admission in June 2020, Marilyn suffered a fall in her room, resulting in a fractured right hip that necessitated surgery.
According to the lawsuit, she passed away on September 16, 2020, at a nearby hospital due to sepsis caused by dehydration and malnutrition.
The family of the elderly woman contended that the nursing home, which had 45 beds, neglected to evaluate her risk of falling and create a preventive strategy. However, Watrous countered this argument by referencing a declaration made in April 2020 by Connecticut Governor Ned Lamont, a Democrat. The declaration granted healthcare professionals and facilities immunity from any claims of injury or death resulting from their acts or omissions while providing healthcare services in good faith to support the state’s COVID-19 response.
Watrous denied liability and filed a motion to dismiss the case. They cited Lamont’s executive order and presented affidavits that argued the nursing home acted in the best possible way during an unprecedented public health crisis. The operators of the nursing home, which closed in July 2021 due to COVID, have not provided any comment on the matter. The case is currently pending.
According to attorney Wendi Kowarik, who is representing Kearney’s family, nursing homes are currently being debated in courts in terms of the level of protection they should be given.
“We’re only at the beginning stages of receiving some guidelines,” she stated.
According to court records, an 88-year-old man passed away in October 2020 in Connecticut after experiencing multiple falls, developing bedsores, and losing over 30 pounds during his two-month stay at a nursing home. The nursing home denies responsibility for his death and argues that it should be granted immunity.
The owners of a Connecticut facility that provided care for a 75-year-old woman with obesity, who needed assistance to get out of bed, are also responsible for her well-being. Unfortunately, on April 26, 2020, she suffered a devastating fall that resulted in significant dental damage and multiple fractures. Tragically, the injuries proved fatal, as mentioned in the pending lawsuit.
Richard Mollot, executive director of the Long Term Care Community Coalition, which advocates for patients, finds it extremely disturbing that providers are making the argument that they should not be held responsible for falls, pressure sores, and other consequences resulting from blatant negligence.
He stated that the government did not declare open season on nursing home residents when it implemented COVID policies.
Protecting the vulnerable
Since the beginning of 2020, nursing homes in the United States have reported over 172,000 deaths of residents, according to data from the Centers for Medicare & Medicaid Services. This accounts for approximately one in seven of all recorded COVID deaths in the country.
According to Reeves, the executive of the trade association, the nursing home industry is facing challenges in its recovery from COVID, including ongoing labor shortages, inflation, and chronic government underfunding.
According to her, the American Health Care Association has been pushing for “reasonable, limited liability protections that protect staff and providers for their sincere efforts” throughout the pandemic.
According to Reeves, caregivers were going above and beyond to protect and care for residents, despite facing challenges such as limited resources and constantly evolving information.
However, patient advocates continue to express caution regarding policies that could potentially prevent grieving families from seeking justice in a court of law.
According to Sam Brooks, a representative from the Coalition for the Protection of Residents of Long-Term Care Facilities, a patient advocacy group, it is crucial that we refrain from implementing laws that incentivize nursing homes to provide subpar care.
Brooks emphasized the importance of bearing this in mind in the unfortunate event of another pandemic.
According to Bill Hammond, a senior fellow at the Empire Center for Public Policy, a nonpartisan think tank in New York, policymakers should prioritize the development of more effective strategies to safeguard patients from infectious outbreaks. Instead of relying on the courts to resolve liability issues years later, proactive measures should be taken to protect the well-being of individuals.
Hammond expressed his frustration, stating that there is a lack of serious effort in engaging in that conversation. He finds this notion to be absolutely absurd.
