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Are liability protections needed during the COVID-19 pandemic?

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coronavirusA trade group that represents nursing homes and other long-term care facilities is asking Gov. Ron DeSantis for broad liability protections during the COVID-19 pandemic, but a Jacksonville attorney says it’s unnecessary.

In an April 3 letter, Florida Health Care Association President Emmett Reed asked for immunity from criminal and civil liability for any harm or damages alleged to have been sustained “as a result of an act or omission in the course of arranging for or providing health-care services,” during the COVID-19 public health emergency.

The immunity protection should not extend to criminal misconduct or acts that would qualify as willful, intentional, or gross negligence, Reed said. But he said anything that happens as a result of a staffing or resource shortage should not be considered negligence or misconduct.

In the letter, Reed also asked that health care professionals and health-care facilities responding to the outbreak be granted sovereign immunity limits.

Florida Agency for Health Care Administration Sec. Mary Mayhew promised the group she would study the request. The group was still awaiting a response on April 15.

Reed made the request as various facilities across the state were becoming coronavirus hot spots. Earlier this month, DeSantis ordered state health department strike teams to 93 facilities and the Florida National Guard to work with them to expand the effort.

On April 15, Florida Department of Health numbers showed more than 1,100 residents or staff have been documented to be infected statewide. AP reports say more than 3,600 seniors have died in nursing homes across the country during the outbreak.

FHCA spokeswoman Kristen Knapp, in an April 15 email, said FHCA was asking for the protections for all health-care providers and professionals, not just the nursing homes and long-term care providers it represents.

Not only did FHCA members rush to implement containment measures ahead of social distancing mandates, staff members are risking their lives daily to care for the state’s most vulnerable residents, Knapp said.

Meanwhile, the facilities are “desperately” trying to obtain more testing and personal protective equipment, she said.

“In the midst of this unprecedented crisis, long-term caregivers should be able to direct their skills and attention to helping individuals who need them and not have to worry about being sued for making tough decisions while trying to comply with government directives,” she said.

But Steve Watrel, a Jacksonville trial attorney who heads the nursing home litigation division of CokerLaw, calls the immunity request unnecessary.

Watrel points out that the federal Public Readiness and Emergency Preparedness, or PREP Act, which was activated in February by the U.S. Department of Health and Human Services, grants individuals and entities immunity from “claims of loss caused by, arising out of, relating to, or resulting from the manufacture, distribution, administration, or use of medical countermeasures,” related to the COVID-19 epidemic.

And the federal Coronavirus Aid Relief and Economic Security, or CARES Act, a $2 trillion stimulus package that President Donald Trump signed March 27, also provides liability protections, Watrel said. The federal statutes supersede state law, he said.

Watrel agrees that nursing home workers deserve praise for their response during the emergency.

“They’re doing a hard job here,” Watrel said. “Gov. DeSantis has done a wonderful job limiting access to the facilities, protecting the residents and not responding to dog whistle for tort reform.”

While many nursing home facilities and long-term care providers do an excellent job, granting sweeping immunity would encourage bad actors to lower their standards at a time when containment measures prevent families from providing oversight, Watrel said.

Watrel worries that nursing homes would use pandemic liability protection to avoid responsibility for neglecting routine care, which can lead to patients developing pressure sores and dying from sepsis, or dehydration and malnutrition.

“This whole idea of just prospective immunity, without even thinking it through, I just think is problematic because where do you draw the line?” he said.

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