ATTORNEY ALEXANDRA LOPRETE’S ARTICLE ON NURSING HOME DEATHS AND IMMUNITY IS PUBLISHED IN THE STAR LEDGER
“The state of New Jersey does not have the ability to hold nursing homes accountable for thousands of avoidable deaths,” says Ms. Loprete in an article recently published in the New Jersey Star Ledger.
In the article shared below, read why the state law giving immunity to Nursing Homes for their negligence related to Covid-19 will be challenged by the attorneys at O’Connor Parsons Lane & Noble, and learn how they are prepared to fight.
It is no secret that long before COVID-19, most nursing homes had obvious shortcomings controlling the spread of infections. They are understaffed, and the staff they do have is overworked, underpaid, and not properly trained in infection protocols. They commonly fail to provide their employees with adequate resources to safely respond to infectious outbreaks.
These failures include not timely providing Personal Protective Equipment, not properly isolating symptomatic residents and employees, not timely testing staff and patients, not providing appropriate medical care or transfer to hospitals and not strictly enforcing infection protocols.
One in three nursing home residents has died from COVID-19. “You’ve got a vulnerable population and a deadly virus, and if that weren’t enough, you’ve got some folks who aren’t doing what they should be doing,” Gov. Phil Murphy said after 17 bodies were found stored at a long-term care facility in Andover on April 12th.
Attorneys are familiar with “not doing what you should be doing,” as a definition for “negligence." In such cases, nursing homes could be held accountable through civil liability. The common law and New Jersey legislation gave residents an avenue to bring claims for negligence and violations of their rights. The very purpose of the law was to provide protections for the most vulnerable members of our society and relief when they are harmed.
However, in mid-April, the legislature passed, and Governor Murphy signed, legislation that protects hospitals, nursing homes and health care professionals treating patients with COVID-19 from legal liability. The motivation for this immunity stemmed from the desire to protect health care workers risking their own wellbeing and to guarantee the state had the resources needed to respond to the crisis. But the law arbitrarily extends to “health care facilities” and potentially immunizes over 600 nursing homes across the state.
With residents’ rights to recover for negligence suspended, with their ability to bring claims for negligence denied, the only remaining way for negligence to be addressed is by the government. Yet, in reality, our government is not equipped to shoulder this burden alone, and until now, no one has expected it to. It’s a reality that lawmakers ignored when they crafted the immunity law.
While granting immunity to individual workers, volunteers or retired medical personnel is justified, providing immunity for the negligence of corporate for-profit entities that have needlessly endangered the most vulnerable segment of our population is an inappropriate restriction on residents’ rights. This is a common sentiment shared among nursing home residents and employees who have witnessed the carnage within and have sought counsel.
How this immunity will be interpreted by the courts remains to be seen. Attorneys will challenge the law and argue it should not apply to all nursing homes and should not suspend all statutory rights. Further, the law does not immunize gross negligence. Although that term is not well defined in the nursing home context, many have engaged in terrible misconduct that may meet the heightened standard.
Indications of why the government alone can’t expect to hold all nursing homes accountable are clear from the state’s past behavior. In response to the COVID-19 outbreak, state inspectors did not begin making on-site inspections of long-term care facilities until 36 days after the state’s first COVID-19 death. Inspections were not performed until after 17 bodies were found in a make-shift morgue at Sussex County facility.
A study by the U.S. Dept. of Health Inspector General shows that in 2015 New Jersey failed to timely investigate 138 out of 189 “high priority complaints.” That is approximately 73% of complaints where a resident may have suffered mental or physical harm were not adequately responded to. Likewise, out of 186 complaints where a resident was in “immediate risk” of serious injury, harm, or death, the state failed to timely respond to 50 of them.
Even if response rates are improved, residents will still be left with no remedy for their harms. If an inspection reveals government mandates are not followed, the only recourse is withholding payment from Medicare/Medicaid and imposing fines. Residents do not receive any compensation out of the money paid for such fines. According to a review of several cases, these harms include preventable and undignified death, extreme pain and suffering endured alone, being left for days without enough food, water, or assistance going to the bathroom or being changed. Such neglect can lead to infections and other life-threatening conditions.
Even if new laws are passed that aim to improve infectious disease responses, there is no guarantee the state has the resources to enforce them. In 2018, 11 children died from an infectious outbreak in a Wanaque facility, and in response proposed legislation required “infectious outbreak plans” at all facilities. But the state Health Department responded that it did not have the resources to vet all plans, so several hundred facilities would be left to “the honor system.”
As a medical malpractice attorney, I have been receiving four to five calls per day from people seeking justice for harrowing accounts of neglect and death at nursing homes across the state. While attorneys are ready and willing to investigate these facilities and hold them accountable, the government-imposed immunity for negligence has us fighting with one hand tied behind our backs. Nevertheless, residents and their families should not be discouraged. We are prepared to fight.
Alexandra Loprete is a personal injury and medical malpractice attorney with O’Connor Parsons Lane & Noble, LLC in Springfield.