Some advocates worry the proposal will prevent nursing home residents from holding facilities legally responsible for abuse and neglect.
Missouri lawmakers are considering legislation that would protect nursing homes and other businesses from coronavirus-related lawsuits.
Supporters say the measure, approved by the Missouri Senate in February, is necessary to prevent a wave of litigation against businesses already struggling to survive. Similar liability shields have been enacted in more than a dozen other states, but some advocates worry the proposal will prevent nursing home residents from holding facilities legally responsible for abuse and neglect.
Under the legislation, no individual or entity “engaged in businesses, services, activities, or accommodations” could be held liable for exposure to COVID-19, unless a plaintiff proves it resulted from recklessness or willful misconduct and caused personal injury.
Even before the pandemic, it was challenging to pursue an abuse or neglect lawsuit against a nursing home in Missouri, said attorney Brett Emison, and it became even harder when facilities closed their doors to visitors last year.
“These are incredibly difficult cases, even under the best of circumstances, when you have family members who have been able to visit and can see Mom hasn't been fed or has a pressure sore developing,” said Emison, former president of the Missouri Association of Trial Attorneys, an organization that opposes the measure.
Missouri’s coronavirus liability bill, he said, would "eliminate all consequences" for nursing home operators and remove the “only check against their wrongdoing.”
Other groups, including AARP Missouri, have voiced similar concerns about the proposal.
“Nursing homes and other LTC [long-term care] facilities should know they will continue to be held responsible for providing the level of quality care that is required of them, and for which they are being compensated,” Jay Hardenbrook of AARP Missouri wrote to Gov. Mike Parson.
Bill sponsor Tony Luetkemeyer, R-Parkville, has bristled at the idea the legislation would shield wrongdoers.
“Some may falsely claim that this bill is designed to protect bad actors who act recklessly,” Luetkemeyer said during a nearly 15-hour Senate debate on Feb. 2. “Bad actors who act recklessly will still be held accountable. Only those who are acting in good faith are protected under this legislation.”
Luetkemeyer said health care providers could be “staring down the barrel” of a wave of coronavirus-related lawsuits and warned of possible job losses if litigation proceeds unchecked.
According to a COVID-19 complaint tracker, there have been 132 lawsuits filed in Missouri since the pandemic began — and of these, two were related to medical claims.
Still, some industry groups contend that the threat of litigation is a serious issue and could potentially put long-term care facilities out of business.
There are more than 500 nursing homes in Missouri, and “all of them are in a stressful financial situation or absolute financial peril,” said William Bates, CEO of LeadingAge Missouri, a nonprofit trade organization that represents long-term care facilities statewide.
“Add the cost of frivolous — and I want to emphasize frivolous, not meritorious — litigation that will go on for years and years and years,” Bates said. “Nursing homes are often one of the largest employers in a county. If that nursing home goes out of business, where do those people go? And where do the jobs go?”
Long-term care facilities have worked to care for residents while facing staff shortages, changing clinical guidelines and a lack of personal protective equipment, Bates said, and should not be held to typical standards.
“This is a tough issue, because I see both sides of the coin,” he said. “No one wants to deny a resident in a nursing home or an assisted living community their day in court if they've been wronged. But we need to balance their right to pursue litigation with what’s going on.”
The bill, should it pass the legislature and be signed by Parson, would remain in effect for four years. That worries Nicole Lynch, public policy coordinator for VOYCE, a group that supports long-term care residents and their families in the greater St. Louis region and northwestern Missouri.
“For the next four years, any sort of mistake by a long-term care facility provider, they can claim immunity, even if it’s not related to COVID,” Lynch said. “That’s really concerning.”
The measure currently awaits action in the Missouri House.
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