Minnesotans who believe they or their loved ones were harmed by hospitals or nursing homes during the pandemic would face a significant new hurdle if they tried to hold them accountable in the courts under a bill introduced this week in the Legislature.
The legislation, introduced by Sen. Michelle Benson, R-Ham Lake, would shield health care providers from a wide range of lawsuits and government sanctions over care decisions made since the start of the pandemic last March. The sweeping liability protections would extend to hospitals, nursing homes, clinics and any health care professional, including doctors, nurses and pharmacists.
Similar to measures being considered in a dozen other states, the bill would have far-reaching implications for patients and their families, depriving them of recourse in the courts for serious and sometimes fatal lapses in care and information on how these mistakes occurred. It would also diminish the ability of state health regulators to hold facilities accountable for health and safety violations, by curtailing their ability to impose financial penalties or other sanctions during the pandemic.
The liability shield bill already has aroused strong passions, and sets the stage for a showdown this session between lobbyists for the hospital and senior home industries seeking the protections and patient advocates and trial lawyers who think it would close off avenues of accountability for substandard care.
'The best they could'
Proponents say the legal shield is necessary because the pandemic has been an unprecedented crisis, and hospitals and nursing homes should not be liable for events that were beyond their control. Shortages of protective equipment, inadequate staffing, and shifting government directives have undermined patient care since the start of the pandemic. Doctors and nurses were expected to make life-or-death decisions, such as whether to put someone with COVID-19 on a ventilator, under conditions of duress and often with conflicting medical advice, the bill's supporters argue.
"People were having to make thousands and thousands of medical decisions that an attorney and a jury could look at in retrospect and say, 'Well, we knew that later,' " said Benson, chairwoman of the Health and Human Services Finance and Policy committee. "They should not be penalized for making decisions the best they could under the unprecedented circumstances they were in."
A broad coalition of health care industry groups, including the Minnesota Hospital Association and associations representing long-term care providers and home care agencies, have come out in support of the legislation, saying the extraordinary challenges of providing care during the pandemic would be exacerbated by having to defend themselves from litigation. Republicans in Congress sought to include liability protections in the federal coronavirus relief bill, but the effort failed.
"Health care providers are already being put in an extremely difficult position by the COVID-19 pandemic," these industry groups said in a joint statement. "They are providing care that Minnesotans need under less than ideal circumstances, often without adequate resources and staff. These difficult challenges will be compounded further when, in the future, they will be forced through litigation to defend their good-faith efforts to serve their communities."
But patient care watchdogs, attorneys and senior advocacy groups like AARP Minnesota say the proposal is misguided and would prevent families and regulators from holding providers accountable for negligent care. They argue that civil litigation is among the few avenues available for uncovering why a patient has deteriorated in health or has died. Access to information has become even more critical during the pandemic. Since last March, senior homes in Minnesota and across the nation have imposed strict limits on visits to prevent the spread of the virus, leaving many families in the dark about the care of their loved ones.
"The breadth of this bill is deeply troubling," said Suzanne Scheller, an elder law attorney from Champlin. "All these non-COVID-related injuries and deaths would essentially receive no accountability under the law."
The proposed measure does not protect providers from "intentional or reckless misconduct or gross negligence," according to the bill's language, but attorneys are concerned the provision would be used to excuse egregious harm and neglect. They point to dozens of recent cases of preventable injuries and incidents of neglect in long-term care facilities, which they argue cannot be attributed to pandemic-related disruptions in care, and for which facilities should be held to account.
In a case last April, a woman with Alzheimer's disease living at an assisted-living home in Litchfield, Minn. fell 18 times over three months while the facility failed to intervene or evaluate her care to determine why she kept falling, according to a state report. As recently as December, state investigators found that caregivers for a home care provider in Grand Rapids, Minn. were not wearing masks properly and still had not been trained on how and when to use protective equipment, potentially affecting 88 clients. And in a case last summer, a woman with dementia contracted COVID-19 at a senior home in Brooklyn Center and was transferred to a hospital; upon arrival, hospital staff discovered that she had three dangerous pressure sores, state investigators found.
For much of the past 11 months, families have had limited or no access inside senior homes, which means they often have to monitor their loved ones' care by videoconferencing or by peering through windows. Since the start of the pandemic, 63% of the 6,273 deaths from COVID-19 have been in nursing homes, assisted-living facilities and other long-term care facilities, state data shows. In cases of unexplained injuries or deaths, the civil discovery process is one way that families can obtain medical records and sworn depositions of facility staff and administrators, attorneys and elder care advocates say.
The proposed bill would also shield state-licensed health providers from government enforcement actions, including penalties and corrective orders related to care provided during the pandemic. These government actions are a vital source of information to families trying to understand what might be happening behind closed doors, attorneys maintain.
Fears of 'slippery slope'
"I would be very concerned that this bill would be used to eliminate all transparency about what happened during the pandemic, particularly to loved ones who have died," said Joseph Gaugler, a professor who focuses on long-term care and aging at the University of Minnesota's School of Public Health.
Opponents of the bill also contend that the nursing home industry, which was devastated by the pandemic, is exploiting the crisis to protect their bottom lines. Nearly a third of Minnesota's 360 nursing homes are owned by for-profit corporations or private partnerships, and many have been acquired in recent years by national chains and private equity firms. Health researchers have found that for-profit homes deliver lower-quality care than ones owned by nonprofits and have more infection-control problems.
This bill "is the first part of the slippery slope that others will use to seek immunity for their improper conduct," said Joel Carlson, chief lobbyist for the Minnesota Association for Justice, a professional association of attorneys. "The pandemic does not give you the right to provide substandard care, and when you have an actionable violation of your licensing duties then you should not be protected from that."
Early in the pandemic, industry groups warned of a rush to the courts by patients and their attorneys amid rising infections and deaths. But the anticipated surge of COVID-related lawsuits never materialized. In Minnesota, there have been no personal injury, medical malpractice or wrongful-death claims filed in state and federal courts since the pandemic began, according to the national law firm Hunton Andrews Kurth, which is tracking coronavirus litigation. Nationally, about 200 such cases have been filed in state and federal courts, the firm has found.
Staff writer Glenn Howatt contributed to this report.
Chris Serres • 612-673-4308