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COVID-19 – A Nightmarish Scenario for Elder and Assisted Living Facilities

Author: Justin T. Ruedaflores

Guest Editor: Christopher Schon

May 6, 2020 7:36pm

As healthcare providers scramble to secure personal protection equipment, hospital beds, and ventilators, elder care and assisted living facilities are looking forward toward the potential fallout of lawsuits arising from the COVID-19 pandemic.  Criticized as being lethal incubators of the disease, elder and assisted living facilities are left in a particularly vulnerable position because they serve a portion of the population who is at a higher risk for severe illness and complications from COVID-19.  In response, recently, a trade group representing 700 assisted living facilities asked Gov. Ron DeSantis to extend the state’s sovereign immunity provisions to the industry and other similarly situated health care providers during the pandemic.

If extended, these facilities and their medical professionals would enjoy similar immunity as state and local governments from civil actions brought by patients or others on their behalf.  A vestige of the British Empire’s rule over colonial America, sovereign immunity barred the monarchy’s subjects from filing civil lawsuits for money damages against the king and his agents.  Today, a more relaxed form of sovereign immunity persists in the federal government and all 50 states, allowing for lawsuits to be brought against the government under specific circumstances.

In Florida, sovereign immunity is codified in Title XLV, section 768.28 of the Florida Statutes, which waives sovereign immunity for wrongs caused by the state’s negligent actions and its agents.  Liability for these actions is capped at $200,000.00 per plaintiff or $300,000.00 per occurrence.  Additionally, the state has a history of extending this immunity to healthcare professionals, but in the past, the protection is only extended under a specific set of circumstances.

In 1992, with the intent of providing healthcare to indigent residents, the Legislature enacted section 766.1115 of the Florida Statutes.  The law extends sovereign immunity to health professionals who contract with the state to provide healthcare services to indigent residents, free of charge.  In 2013, the state Legislature expanded the law to include dentists and dental hygienists who met the same criteria.  Despite the state’s precedent of extending sovereign immunity to healthcare professionals, elder care, and assisted living facilities face an uphill battle because they do not meet any of the existing criteria.  A more reasonable expectation of these facilities during this pandemic would be a more stringent extension of sovereign immunity tied exclusively to causes of action arising from COVID-19, with a sunset provision ending once widespread access to testing has become available.

While opponents of the proposal criticize the request as a blank check to commit malpractice, they fail to understand the plight currently faced by these facilities.  Despite the first case of COVID-19 being reported on or about January 22, 2020, to date, the federal government has yet to issue a national mandate requiring all Americans to shelter in place.  This void of direction from the federal government left the states to piecemeal their response to this unprecedented global crisis.  With some states issuing shelter in place orders in mid-March, other states like Florida did not issue these orders until early April, which meant that the disease was able to spread more freely in states that were slower to respond.

The state’s slow response, coupled with the nature of the disease, which has an incubation period of 5 days before carriers become symptomatic, creates the possibility for individuals unknowingly spreading the disease to the most vulnerable members of the population.  This set of circumstances and residents’ inability to access testing for the disease created a nightmarish scenario where caretakers at these facilities unknowingly exposing the most vulnerable members of the population to a fatal disease.  Unfortunately, this scenario played out in Florida and other parts of the country, where patients at these facilities have experienced severe illness and death.

Conclusion

The sad fact of the matter is that the pandemic has placed these facilities in an especially vulnerable position, and will soon be forced to defend lawsuits from patients and their families.  While it seems securing sovereign immunity will be an uphill battle for these facilities, the state Legislature should consider some relief for these facilities who potentially face rampant liability through no fault of their own.

As the state starts to consider lifting stay at home orders, we will continue to monitor the situation to best address our clients’ needs in this ever-changing landscape.

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