By Matt Fair

Law360 (May 8, 2020, 7:54 PM EDT) -- While Pennsylvania's governor may have agreed on Wednesday to extend civil immunity to medical professionals responding to the COVID-19 pandemic, defense attorneys and industry leaders say the door remains wide open for a potential deluge of lawsuits against nursing homes and other health care facilities.

Members of the state's defense bar are sounding alarms after an executive order from Gov. Tom Wolf designed to protect individual health care and emergency service workers from liability failed to extend similar protections to hospitals, nursing homes and other facilities treating COVID-19 patients.

"The biggest protection in that order was the protection of the trial bar's ability to make a profit off this pandemic, and I think that's outrageous and unfortunate," said Curt Schroder, the executive director of the Pennsylvania Coalition for Civil Justice Reform. "It does not go nearly far enough to protect health care providers, facilities, health systems, nursing homes and others from the sharks that are circling them right now."

Wolf's order puts Pennsylvania alongside neighboring states New York and New Jersey in providing some form of protection from potential civil claims related to treatment and care of COVID-19 patients.

In legislation adopted in New York and New Jersey, however, immunity was extended not only to health care workers, but also to health care facilities such as hospitals and nursing homes.

On the other side of the issue, however, members of the state's plaintiffs bar said that the threat of civil liability, particularly in the case of for-profit nursing homes, was a crucial means of holding corporate-owned facilities accountable for ensuring the health and safety of residents.

"One thing that we've learned over the years is that, historically, large corporations — and that includes the health care industry — do a fairly poor job of self-policing," said Steven Wigrizer, the chairman of the medical malpractice group at the Philadelphia-based plaintiffs' firm Saltz Mongeluzzi & Bendesky PC. "Without the prospect of financial responsibility, there's really very little incentive to improve care where the industry has already decided that the care is good enough."

The lack of outside oversight is highlighted by the fact that state and federal inspections of nursing homes have all but ground to a halt as a result of the pandemic.

The situation prompted a group of plaintiffs' attorneys to band together late last month to launch a class action demanding that the state's Department of Health immediately investigate the adequacy of infection controls at individual facilities.

"Pennsylvania is essentially frozen in place, and this is going to result in a net loss of thousands of deaths in long-term care facilities," said Robert Sachs Jr., an attorney with Shrager & Sachs representing the plaintiff in the lawsuit. "This has been a largely avoidable travesty of health care delivery in the Commonwealth of Pennsylvania, and it falls squarely at the feet of the Department of Health."

While it may be the department that's facing legal scrutiny at the moment, the nursing home industry expects to be hit hard by lawsuits without the protection afforded by civil immunity.

According to Department of Health figures, just over 20% of the approximately 54,000 confirmed COVID-19 cases reported in Pennsylvania as of Friday were nursing home residents.

Of the 3,616 deaths from COVID-19 in Pennsylvania, meanwhile, just over two-thirds — 2,458 — were associated with nursing homes.

The department said on Friday that some 520 nursing homes across the commonwealth had reported COVID-19 cases.

"The threat of lawsuits is arguably one of the greatest concerns that providers across the state have right now," said Zach Shamberg, the president and CEO of the Pennsylvania Health Care Association, a group representing long-term care and nursing homes.

"We have more than 500 long-term facilities across the state that have a COVID-positive resident right now," he said. "If there are no liability protections granted, I would expect to see at least 500 lawsuits across the state."

Indeed, Wigrizer told Law360 that his firm, which made headlines Thursday as it filed Pennsylvania's first coronavirus-related wrongful death lawsuit against meatpacking giant JBS SA, was investigating about a dozen potential cases involving nursing home exposures.

Daniel Ferhat, a partner with White and Williams LLP who specializes in defending medical malpractice cases, told Law360 that Wolf's executive order — far from curbing the number of lawsuits over the response to the pandemic — could end up having the opposite effect.

"It's going to incentivize plaintiffs' lawyers to add claims of corporate liability," he said. "If a plaintiff's attorney thinks they may not be able to pursue a case against a physician or a nurse because of immunity issues, that attorney could theoretically try and assert a claim for corporate negligence. It may not be as strong, but I think a creative lawyer would be able to make out that case."

But while the industry and the defense bar have raised the specter of the glut of lawsuits they expect to face without the protection of civil immunity, Wigrizer and other members of the plaintiffs' bar said that coronavirus-related claims would prove extremely difficult to litigate successfully.

"Just because someone simply gets a virus like this in the absence of any negligence, that doesn't lead to any liability," said Peter Giglione, an attorney with the Pittsburgh-based plaintiffs' firm Massa Butler Giglione. "Infections happen and viruses spread, but the issue is going to be the conduct that led to the exposure and how facilities handled a patient's declining health."

Among the challenges in bringing successful claims would be proving exactly where a patient picked up the highly infectious disease and whether it was a result of any negligence on the part of the facility.

"There's a lot of contact-tracing that would have to be required to support any kind of case," Sachs said.

Meanwhile, Wigrizer said that staffing shortages at health care facilities and problems securing personal protective equipment would likely be considered mitigating circumstances when looking at how facilities responded to outbreaks.

"As juries are charged, the very concept of negligence includes a consideration of the circumstances," he said. "When the circumstances include a pandemic, obviously jurors are going to consider staffing problems, shortages of PPE, and even things like confusing and contradictory guidance at the state, federal and local levels."

But Shamberg said that a potential uptick in lawsuits, even if they don't ultimately wind up in front of juries, could still spell financial peril for nursing homes who opt to dispose of claims through settlements.

"Most of the lawsuits facing long-term care facilities in Pennsylvania, since there are no caps on punitive damages, don't end up going to court — they result in settlements," he said, noting that the average settlement in a nursing home negligence case was about $200,000.

In the meantime, both Shamberg and Schroder said they would be working hard to lobby state lawmakers to take action aside from Wolf's executive order to further extend civil liability protections.

"We are going to continue working with members of the General Assembly to ensure that our providers, especially those who are at the epicenter of this, receive that same protections that have already been given in so many other states," Shamberg said.

--Editing by Adam LoBelia.

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