Northam expands provider immunity in pandemic

Amid the COVID-19 pandemic, a governor’s order may limit, but not eliminate, virus liability exposure for some health care providers.

Responding to a bid for broader and more specific liability protection for medical professionals in the pandemic emergency, Gov. Ralph Northam last month offered new, particularized examples of immunity protection.

Northam’s immunity expansion does not cover anyone other than “health care providers” and may not help assisted living facilities and other elder care services. The governor’s April 28 order expands protection to shortages of staff and prevention equipment, among other conditions.

The order seemed unlikely to forestall a rise in nursing home litigation in the wake of the pandemic. Lawyers on both sides are bracing for an onslaught of complaints from families of COVID-infected patients.

Nancy F. Reynolds of Roanoke, who advises and defends long term care facilities, said plaintiffs’ attorneys are receiving daily calls from residents’ families.

“The discussions are about telephones not being answered at the facilities, failure to inform them of COVID-19 prevention measures, how to discharge family members and learning about positive cases in the media first,” Reynolds said.

The primary concern involves failure to communicate, a lapse not covered by the governor’s order, Reynolds said.

Immunity in effect

Northam’s Executive Order 60 builds on longstanding, but untested, emergency liability protection.

The order “reinforces certain existing statutory liability protections for Virginia healthcare workers,” the governor’s office said in a news release. Due to COVID-19, public and private healthcare providers are operating with limited resources and may be forced to serve patients outside of conventional standards of care, Northam said.

“It is in the public interest to afford healthcare providers involved in the delivery of healthcare impacted by COVID-19 with adequate protection against liability for good faith actions or omissions taken in their efforts to combat this health emergency,” Northam said in his order. He noted the order does not affect liability in the case of gross negligence or willful misconduct.

Only ‘health care providers’ protected

Northam acted at the request of the medical community.

As fears of COVID-19 lawsuits arose, a coalition of professional associations – led by the Medical Society of Virginia – composed a request for Northam to add some specifics to the state’s two vaguely worded statutes providing limited immunity to health care providers for actions during disasters.

The statutes are Va. Code §§ 8.0-1-225.01 and -225.02.

After some fine tuning at the behest of trial lawyers, the revised request was delivered to Northam’s office April 9.

The request asked Northam to make it clear that the statutory immunity had been triggered by the COVID-19 pandemic. The professionals also sought language in a gubernatorial order that would bring assisted living facilities, home care, adult day care and hospice services within the same immunity as “health care providers.”

Northam’s order clarified that the virus emergency had triggered the statutory protections. But Northam did not expand the immunity of the Code to assisted living facilities and the other elder-care services.

“The governor’s office did not think he had the constitutional authority to extend the statutory protection to include assisted living facilities and the others,” said Clifford L. Deal III, a Henrico County surgeon now serving as president of the Medical Society. “It is expected in the special session that the General Assembly will be asked to address these liability protections for others,” Deal said in a statement released by the MSV.

As requested, Northam’s order deems certain conditions to be “lack of resources” that would excuse substandard care:

• shortages of protective equipment,
• shortages of trained staff,
• out-of-credential care,
• “crisis standards of care,” and
• innovative use of supplies and equipment.

Northam’s order “provides some clarity to Virginia’s existing statutes that protect health care providers,” Deal said.

Trial lawyers cautious

Absent Virginia’s immunity provisions, the COVID-19 crisis would seem to provide fertile ground for malpractice lawsuits. As of May 6, there were 2,902 virus cases and 405 deaths in Virginia long term care facilities.

Some nursing homes were hit hard. At least 50 people died in an outbreak at the Canterbury Rehabilitation and Healthcare Center in Henrico County, a 190-bed facility. At the 97-bed Accordius Health home in Harrisonburg, 22 had died as of May 5, according to a published report.

The Canterbury infection rate was close to 70%. Figures like that suggest a failure of infection control, said Jeffrey J. Downey of McLean, whose practice includes elder neglect and abuse.

Patients and families “should be able to target the worst offenders,” Downey said, expressing concern about the Northam order. “There are a lot of nursing homes that dropped the ball on COVID-19 protections,” he said.

But Reynolds, the lawyer for long term care facilities, said her contacts with the plaintiff’s bar suggest trial lawyers will avoid infection cases. The disease can be carried by patients and staff members who show no signs that they’ve been infected.

“It’s just not fair to hold nursing homes accountable when they can’t identify those who have been exposed,” she said.

Robert Carter of Appomattox said he’s one of those plaintiffs’ lawyers who will stay away from ordinary infection claims.

“It’s really hard to prevent that which you cannot see,” he said.

While early infections may have been largely unpreventable, later patient exposures could give rise to claims, Reynolds said. If exposure to visitors is cut off and new cases appear more than two weeks later, shortfalls in staff monitoring could be blamed. A failure to screen staff would not be immunized under the Northam order, Reynolds said.

She urged all long term care facilities to adhere strictly to federal guidelines and “communicate with the families of the residents like never before.”

Carter said he’s concerned elder care facilities will use the governor’s order to argue that more ordinary lapses – falls, pressure sores and medication errors – should be immunized because they were caused by pandemic-related shortages.

Eventually, the impact of the Northam order will depend on how judges interpret it, Carter said.