As of summer 2021, the U.S. counts over 35 million COVID-19 cases and more than 616,000 deaths. Nearly one-third of U.S. COVID-19 deaths are linked to nursing homes. According to the Centers for Disease Control and Prevention as of June 2021, 31% of all U.S. deaths (184,000) and 4% of all U.S. cases (1,383,000) were reported among residents and employees of long-term care facilities. In Kentucky, with 409 facilities, 33% of COVID-19 deaths (2,291) were linked to nursing homes out of 30,030 nursing home cases. These numbers have been trending down since the vaccine became available.
In the June 2020 issue of MD Update my partner, Jamie W. Dittert, reviewed “COVID-19 Immunity Protection for Health Care Professionals,” and in the February 2021 issue we reviewed “COVID-19 Vaccine” guidance. As pandemic circumstances continue to change, many issues remain as to COVID-19 vaccination, immunity and legal liability.
As of mid-August 2021, it is reported more than 80% of Americans over the age of 65 are fully vaccinated. Overall, about 189.9 million people or 59% of Americans have received at least one dose of vaccine (about 50% of the total population have now been fully vaccinated). In Kentucky 53% received one dose; 46% are fully vaccinated.
In 2020, long-term care providers began vaccinating patients, residents, and employees on a voluntary basis. Due to age and underlying health conditions, nursing home residents may be at greater risk of severe illness if they contract COVID-19. On August 18, due to lower vaccination rates and the rising number of COVID-19 cases attributed to the Delta variant, President Biden announced that nursing home and long-term care facilities must vaccinate their staff against COVID-19 in order to receive federal Medicare and Medicaid funding.
During the summer of 2021 new cases have grown as the Delta variant spreads. The majority of people contracting the virus and being hospitalized are unvaccinated. The threat to patients may be reduced through universal staff vaccination, as findings from the June 2021 CDC “HEROES-RECOVER” study of health care workers, first responders, frontline workers, and other essential workers suggest that fully or partially vaccinated people who got COVID-19 might be less likely to spread the virus to others.
Some long-term care providers are now requiring mandatory vaccines for staff. As of July 2021, the healthcare industry has not endorsed a vaccination mandate but supported continued efforts to educate its workers.
Questions exist regarding whether employers can require a vaccination, applicable exceptions (union contracts, ADA and Title VII), who is responsible for COVID-19 in the workplace or at a business, and if there is immunity for business owners when there is a claim by an employee or customer. These issues give rise to the ongoing debate at the federal and state level over COVID-19 related lawsuits.
At the federal level, efforts were made in 2020 urging national COVID-19 civil liability immunity as a part of the “SAFE TO WORK” legislation. The federal bill proposed to provide broad liability immunity for businesses, healthcare facilities, educational institutions and local governments by preempting state laws, providing federal court jurisdiction, heightened pleading requirements, a medical causation affidavit, limited damages, limits on class actions, and to apply retroactively to all claims filed on or after December 1, 2019. The federal bill has not been passed.
At the state level, many legislatures have enacted immunity for businesses and employers against lawsuits claiming COVID-19 related liability. Of course, immunity from liability does not guarantee immunity from litigation and furthermore, there are insurance coverage issues for COVID-19 claims.
On April 11, 2021, Kentucky “Senate Bill 5” became law, purporting to afford immunity from COVID-19 based negligence litigation to healthcare providers and business owners (KRS 39A.280). The new Kentucky law attempts to protect businesses from lawsuits that claim someone contracted COVID-19 while at the place of business so long as the business did their best to follow COVID-19 guidelines. The April 2021 Kentucky law protects “essential service providers” who are also defined to include teachers, home healthcare workers and local government employees.
“On April 11, 2021, ‘KY Senate Bill 5’ became law, purporting to afford immunity from COVID-19 based negligence litigation to healthcare providers and business owners (KRS-39A.280)”— Doug Stephan
The 2021 Kentucky statute applies retroactively to March 6, 2020, and would end after December 31, 2024. This statutory immunity does not apply in cases of “gross negligence, wanton, willful malicious, or intentional misconduct.” Businesses must be in compliance with federal, state, local and industry guidelines. This statute also requires that COVID-19 injury claims be filed within one year of the injury being discovered.
However, this new 2021 Kentucky law may not withstand a court challenge based on the Kentucky “jural rights doctrine.” Under the Kentucky constitution and case law, a person claiming an injury has a right of access to the courts. The constitutional provisions give the judicial branch the sole authority regarding personal injury claims. To enforce the 2021 statute may require amending the Kentucky Constitution. Despite immunity provisions, the potential for liability remains.
Even if a negligence lawsuit is filed, the plaintiff must meet their burden of proof. First, the plaintiff must establish what standard of care applies during the pandemic and how the provider violated the standard of care. This could be difficult because guidance from public health officials frequently changed. Early in the crisis, a shortage of protective equipment precluded staff from implementing COVID-19 protective measures.
Next, a plaintiff must prove that the acquired COVID-19 infection was caused by the negligent act or a failure to act by the business or employer. As a practical matter, most people infected with COVID-19 may not be able to confirm the source of their infection (with the possible exception of extended care at a hospital, long-term care facility or nursing home). It may be three to eleven days between infection and illness, and the inability to identify all the person’s contacts during the interval and limited testing to confirm the virus could present obstacles to establishing causation to any one business or healthcare provider.
Finally, if a lawsuit is filed and the case survives a motion to dismiss based on immunity, the plaintiff must identify an expert to establish standard of care and causation, which may be difficult to prove. If the case moves to trial, many of the potential jurors might now consider healthcare providers “heroes,” which could impact their willingness to find providers at fault.
In the meantime, businesses should continue to follow recognized COVID-19 safe practices. This includes hospitals, nursing homes, long-term care facilities, physicians, other healthcare personnel and providers.
E. Douglas Stephan is a medical malpractice defense attorney with Sturgill, Turner, Barker & Moloney, PLLC. He can be reached at dstephan@sturgillturner.com or 859.255.8581. This article is intended to be a summary of state or federal law and does not constitute legal advice.