Advocates for nursing home residents say they worry a new Indiana law expanding COVID-19 liability protections for health care providers will effectively block many lawsuits over neglect and substandard treatment that weren’t caused by the pandemic.
The new law applies retroactively to when Indiana’s first COVID-19 infections were reported in March 2020. The law was sought by the nursing home industry, which argues it will keep facilities financially viable by shielding them from a potential flood of coronavirus-related lawsuits.
Critics of the law, however, maintain it lets nursing homes escape responsibility for deaths and injuries caused by problems that preceded the pandemic, such as inadequate staffing.
The new law protects health care providers against any claims “arising from COVID-19.” The definition of that phrase includes the reallocation of staff, delaying or modifying nonemergency medical services and reasonable nonperformance of medical services due to COVID-19.
The measure doesn’t prevent lawsuits over “gross negligence or willful or wanton misconduct,” but trial lawyers warn those are virtually impossible to prove.
Republican Sen. Mark Messmer of Jasper, a sponsor of the bill, called the measure “very carefully balanced between the concerns of the medical community and protections for patients to make sure nothing outside of COVID-related issues are covered.”
But Jody Madeira, a professor who teaches medical law at Indiana University Maurer School of Law, said the new law provides a way for nursing homes to make mistreatment claims go away. The protection for reallocating employees because of COVID-19 is especially concerning, she told The Indianapolis Star.
“As soon as you go into staffing, which nursing homes have problems with in the best of times, then it opens up the door to just about anything,” Madeira said.
The expanded nursing home protections come as Indiana’s nursing home system ranked 48th in the nation for total nursing staff hours before the pandemic when adjusted for patient needs, despite receiving more nursing home Medicaid funds than nearly any other state.
An Indianapolis Star investigation last year detailed how government officials allowed more than $1 billion in nursing home Medicaid funds to be diverted to county hospitals, which have bought up nearly all of Indiana’s 534 nursing homes, at least on paper, in order to access the nursing home funds to build new hospitals and pad their bottom lines.
At least one nursing home is already using COVID-19 to defend itself against a state health department citation for failing to prevent and treat bedsores, the Star reported. In that case, one resident’s bedsore was so badly infected her leg had to be amputated.
“It’s just unbelievable that our Legislature would even think of giving them immunity for what they’ve done to my mom,” said Duane Zenn, son of the woman who lost her leg.
Republican Gov. Eric Holcomb signed the nursing home protections bill into law last month after signing another bill in February that gave Indiana businesses broad protections from lawsuits by people blaming them for contracting COVID-19. Republican lawmakers made that a top priority for this year’s legislative session even as supporters didn’t point to any such lawsuits in the state.
The Indiana Health Care Association, which represents the state’s nursing home operators, argued the new law is “specifically tailored to address actions that are in response to the pandemic or for COVID-19 and do not provide blanket immunity.”
“Any alleged acts of negligence that are not in response to the pandemic or for COVID-19 will not be provided the heightened standard afforded under” the new law, the group’s president, Zach Cattell, said in a statement.
The AARP, the state’s largest advocacy group for older adults, said it worries about the new law’s impact.
“Are we prioritizing protecting the facilities? Or are we prioritizing protecting the residents and their families?” asked Sarah Waddle, state director of AARP Indiana. “When we know that there are bad actors within that system, why are we so quick to always protect them?”
This article was first published in The Indiana Lawyer.