As states protect nursing homes from lawsuits, families fear they have little recourse

On Valentine’s Day of this year, Tosica Figueroa and her six sisters made the wrenching decision to move their father, Alonzo Matthews, into a nursing home. The sisters could no longer handle the care for Matthews, a former Washington, D.C. correctional officer who had been suffering from Alzheimer’s disease.

Within three months, Matthews died after testing positive for COVID-19. His anguished daughters said they began discussing filing a lawsuit against the Bethesda Health and Rehabilitation Center in Maryland alleging neglect after she said she heard about the condition he was in in his final days. They have not yet formally filed their complaint.

“When he was taken to the hospital, the doctor informed us that he had lost 30 pounds and that he was so dehydrated, his blood was like mud,” Figueroa said. “His sodium levels were so high from how severely dehydrated he was. There’s a difference between my father dying of coronavirus or dying with coronavirus.”

Figueroa also said their father went into septic shock two weeks before he died on May 6.

Bethesda Health and Rehabilitation Center did not respond to ABC News' requests for comment, but the company that owns the nursing home previously told ABC News' affiliate WJLA, "We know that this is an unsettling and scary time for our residents."

"We understand and greatly appreciate family members’ concern for their loved ones and are doing everything in our power to keep our residents safe and protected," SavaSeniorCare Consulting LLC Chief Experience Officer Annaliese Impink said.

Figueroa and her family represent a growing number of families who are contemplating lawsuits against long-term care facilities across the nation as more than 37,000 residents have died in nursing care during the coronavirus pandemic, and amid some reports of under-staffing and inadequate protections.

But pursuing legal action during a pandemic could prove an uphill battle for Figueroa and many others.

Even before the COVID-19 outbreak, Maryland had legal provisions in place that protect health care providers of legal liability during a declared public health emergency. Now, as the virus invades nursing homes across the country, Congress is considering instituting similar protections for nursing homes nationwide.

Every case is different, said attorney Michael Brevda who is involved in several lawsuits against nursing homes in New York, Florida and Pennsylvania, and facilities could still be liable for wrongdoing. But he said that taking legal action during the pandemic "against nursing homes for COVID-19-related injuries or deaths may be challenging because of the protections."

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While supporters of the measures, including Senate Majority Leader Mitch McConnell, say they protect front-line workers from "frivolous" legal action in the midst of an emergency, advocates for the elderly and their families say the ongoing and potential lawsuits are about protecting residents.

“With the limited accountability we have right now because of the lack of family visits, having this basic legal accountability is one of the few things that we have left to make sure that they keep peoples loved ones safe,” said David Certner the Legislative Counsel and Legislative Policy Director for Government Affairs at AARP. “The point is to maintain accountability especially at a time when there is none."

The potential congressional action comes as at least 15 states recently issued executive orders or new legal provisions to shield nursing homes from legal action related to the pandemic, according to a review of public records by ABC News.

State by state, protections for health care workers differ. Some states have no lawsuit shield, others guard only from civil suits while others still offer protection from criminal lawsuits as well. In many cases these protections are triggered by the declaration of a public health emergency.

In New York, for example, where nursing homes now account for almost 6,000 deaths -- 25% of all deaths from the virus in the state -- lawmakers inserted language into a budget bill, signed by the governor on April 3, that would grant nursing homes and medical providers protection from civil and criminal lawsuits.

“The furnishing of treatment of patients during such a public health emergency is a matter of vital state concern affecting the public health, safety and welfare of all citizens,” the new provision says.

To promote that, the language says, “broadly protecting the health care facilities and health care professionals in the state from liability that may result from treatment of individuals with COVID-19 under conditions resulting from circumstances associated with the public health emergency.”

Other states, like Massachusetts and Wisconsin, have approved similar COVID-19 lawsuit protections for nursing homes. In Connecticut, Arizona, Illinois, and several other states, similar protections have been imposed as executive orders by the governors.

In California, one woman is suing a nursing home there over the loss of her 84-year-old father, alleging that the facility forged his death certificate and hid a positive coronavirus test result. The woman, Kathryn Sessinghaus, said she learned the home was understaffed and failed to take proper infection control measures.

"This isn't going to bring my father back to life, but I can't imagine any other family going through this," she said in a statement provided to news outlets.

California, like Maryland, has limited laws protecting health care providers from liability during a declared health emergency. The state is considering broader immunity measures, given the current crisis.

Senate Majority Leader McConnell is now pushing for federal liability protections for all medical workers, calling it a “red line” issue – which he wants included in any new legislation aimed at providing additional coronavirus relief.

The costs and benefits of medical malpractice lawsuits has been the subject of decades of wrangling in Congress. McConnell, a Kentucky Republican, has long favored strict limits on those legal cases, and he has re-kindled the debate in the face of the pandemic. At one point, the senator said he feared health care workers could be facing a “second epidemic” in the form of protracted legal battles.

"It is crucial that as we continue to fight the pandemic itself we ensure it is not followed up by a job-killing epidemic of frivolous lawsuits," McConnell said. "This would be about the worst time in living memory to let trial lawyers line their pockets at the expense of the rest of the country."

The Majority Leader has made clear that the federal protections he intends to propose would not include total immunity.

"There will be accountability for actual gross negligence and intentional misconduct," McConnell said earlier this month. “We aren’t going to provide immunity. But we are going to provide some certainty."

Mark Parkinson, the President and CEO of the American Health Care Association, which represents more than 14,000 for-profit nursing homes, sees these protections as necessary for staff to do their jobs.

“Long term care workers and centers are on the front line of this pandemic response and it is critical that states provide the necessary liability protection staff and providers need to provide care during this difficult time without fear of reprisal,” Parkinson said in a statement.

But lawyers representing families who are suing nursing homes say lawsuits are not targeting workers. Rather, they are holding upper management accountable and will help promote the best care possible.

“For the most part, these front-line workers are the heroes in the facilities,” said Matt Morgan, an attorney with the firm Morgan & Morgan that has announced it intends to sue a nursing home where 16 residents died. “But upper management is telling them what to do and what not to do. These people are being put into harm's way without appropriate [protective gear], without getting tested, without all the things that they need to keep themselves safe.”

In early March, as COVID-19 began infecting rising numbers of nursing home residents, there were a series of actions that raised concerns among relatives of those living in long term care facilities.

The federal agency that regulates the industry announced they were rolling back their non-emergency inspections of facilities – a move they said would free up inspectors to focus more closely on infection control and safety precautions targeting the virus.

At the same time, nursing facilities were being locked down to prevent new infections. Relatives of residents were told they could no longer visit their loved ones.

Lawyers and advocacy organizations said both actions, while justified for safety reasons, also have restricted outsiders from having any first-hand view of the response inside the homes.

“You're particularly in a situation where there is no practical matter government enforcement of the regulations right now, and surveyors haven't been in nursing facilities for a couple months now,” said Eric Carlson, directing attorney of Justice in Aging, which advocates for impoverished seniors. “It’s a really bad time for facilities to be immune from any potential civil action for a provider's negligence.”

For Figueroa, who said she is concerned about the conditions leading up to her father’s passing from speaking with the doctors who treated her father, says she finds it deeply frustrating that she may be blocked from pursuing legal action.

“If there's a chance that my sisters and I won’t be able to get justice for my dad, I will be outraged,” Figueroa said.

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