As a result of the COVID pandemic, the governors of many states entered an executive order which granted an immunity from civil damages resulting from patient deaths and injuries relating to hospital, nursing home and health care provider efforts while treating COVID and other patients especially when faced with staffing, equipment and PPE shortages. The language in these orders varies from state to state but in most, the health care provider must establish a causal connection between attempts to provide COVID-related treatment as opposed to a failure to take appropriate preventative measures. In this case involving a nursing home in which 12 patients died from COVID, its motion to dismiss a resulting lawsuit was denied because the nursing home had not yet presented sufficient evidence to support its immunity defense.
Lessons learned include:
1. Read the statute closely to understand the specific immunity requirements.
2. Identify documents, records and other non-privileged communications which link COVID treatment and prevention efforts to the alleged patient injuries or death.
3. Identify how the COVID pandemic has adversely affected such efforts and steps taken to mitigate patient risk.
4. A failure to take reasonable precautionary steps most likely will not qualify for protection.
"There's a difference between allowing the virus to spread by taking no preventative measures, and spreading the virus while affirmatively treating it or trying to prevent spread,"