Nursing home protections limit families who want to sue

As the coronavirus takes a devastating toll on seniors in nursing homes, many attorneys are turning down grieving families seeking to sue long-term care providers for wrongful death

Virus Outbreak Suing Nursing Homes (Leah Burrough)

In her room at a Georgia nursing home Bessie Burden was so concerned about the coronavirus that she wore a mask — sometimes two — even when she slept.

With the home closed to visitors because of the pandemic, Burden's daughters worried about their spunky 77-year-old mother, who decades earlier had survived a stroke and had persevered despite heart disease, diabetes and a leg amputation. When Burden told them by phone that she felt ill and was being treated with supplemental oxygen — and her roommate had been taken away by ambulance days earlier — they became alarmed. A call with a nurse who sounded confused about Burden's care increased their sense of urgency.

The daughters called an ambulance to take their mother to a hospital. Once admitted, Burden tested positive for COVID-19. She died 10 days later, one of at least two residents of the Westbury Conyers nursing home to perish in an outbreak.

Burden’s daughters blame the Conyers, Georgia, nursing home for their mother’s death, saying administrators kept the family in the dark about Burden's being exposed to the virus and quarantined as a presumptive case. But the state has essentially blocked them from going to court.

Georgia is one of at least 34 states that have shielded nursing homes — along with other health providers and private businesses — from lawsuits over coronavirus deaths and infections during the pandemic, citing unforeseen challenges and economic hardships.

Many laws say providers can be sued only for COVID-19 deaths resulting from “gross negligence” — a legal standard that’s greater than ordinary negligence, which can include carelessness, but falls short of causing intentional harm.

“They’re saying negligent care is OK,” said Sam Brooks of the National Consumer Voice for Quality Long-Term Care which advocates for nursing home residents. “This creates a standard that every nursing home resident could be subjected to harmful care without repercussions.”

The day that Burden died, Oct. 22, government inspectors reported her nursing home had done such a poor job controlling infections that residents were in “immediate jeopardy” of injury or death. Inspectors found the home had failed to report an outbreak that sickened at least 23 residents, placed infected residents in rooms close to uninfected ones and botched coronavirus test processing.

Ron Westbury, one of the nursing home’s owners who assumed administrator duties after the outbreak, said by email that Westbury Conyers has taken corrective actions since then and shared a letter from state regulators saying a visit Jan. 21 found the home in “substantial compliance.”

Burden's family called multiple law firms, hoping one would help them file suit. But each time they heard the same response: Attorneys weren't taking cases involving the coronavirus in nursing homes because Georgia's governor had granted them immunity from most lawsuits by executive order in April. Legislators later wrote that protection into state law.

"My aunt, she was so heartbroken, and she kept asking, 'Is there anybody who will help us? They need to be held accountable,'" said Theresa Burrough, one of Burden's daughters.

Atlanta attorney Jeff Harris said his firm gets about 10 calls a day related to coronavirus deaths and injuries but Georgia’s law makes such cases nearly impossible to win.

“The worst thing you can do for somebody is give them false hope,” Harris said. “But it’s hard to tell them you’ve got no case.”

Nursing homes say they have worked tirelessly, with limited staff and resources, to protect residents who are particularly vulnerable. According to the COVID Tracking Project, the virus has killed roughly 162,000 nursing home residents and workers — more than 1 in 3 U.S. virus deaths.

“Compounded with an excessive litigation environment, thousands of long-term care facilities would be forced to close their doors, in turn, displacing tens of thousands of vulnerable residents,” said Beth Martino, spokeswoman for the American Health Care Association, which represents nursing homes.

The AARP says it’s working to defeat proposals in 11 states that would either enact new legal shields or extend the effective dates of existing ones.

In Kansas, lawmakers are considering a proposal to grant nursing homes immunity from coronavirus-related lawsuits that would apply retroactively to any cases filed since March 12, the day after the World Health Organization declared it a pandemic.

“It’s obviously not fair,” said Gordon Grohmann Jr., who has a lawsuit pending against an assisted living facility in Prairie Valley, Kansas, where his father got infected with the coronavirus.

He said staff at the Brighton Gardens long-term care home failed to notice 88-year-old Gordon Grohmann Sr. had become sick until relatives heard him wheezing and gasping on the phone and learned he was too weak to walk. Within a couple of days, on April 29, Grohmann’s family insisted he be taken to a hospital, where he tested positive for COVID-19. He died May 1.

On May 11, the Kansas agency that oversees nursing homes reported Brighton Gardens put residents in “immediate jeopardy” when a nurse’s aide worked an entire shift in mid-April after reporting coughing and other virus symptoms as well as exposure to an infected person. Under CDC protocols, the worker should have been sent home. The worker tested positive for the coronavirus a few days later, and infections were confirmed in at least three residents in the period Grohmann got sick.

Grohmann had been on lockdown inside his two-room apartment since March, his son said, with no visitors except for staff bringing his medication and cleaning the room.

“They brought it to him, for crying out loud,” Grohmann said. “Nobody had access to him but them.”

Brighton Gardens' parent company, Sunrise Senior Living, declined to comment on Grohmann's death, citing the pending lawsuit. In a statement, Denise Falco, Sunrise's vice president of operations, said “appropriate, corrective action” had been taken in response to any problems identified by inspectors.

At the Georgia nursing home, Burden had been known as a social ambassador, zipping from room-to-room in her motorized wheelchair to visit residents who couldn't leave their beds. When the pandemic struck and her daughters could no longer visit, she assured them by phone she was wearing a mask at all times.

“She slept in it. She wouldn’t take it off," Burrough said. "And sometimes she would wear two.”

Burrough said the family later learned that her mother's roommate had been hospitalized with the virus before Burden became ill and they weren't told Burden had been quarantined as a presumed coronavirus case.

She said she sees little incentive for nursing homes to improve if they're absolved from liability and has considered suing Westbury Conyers for just $1.

“I just want a judge to tell them they were wrong,” she said.