By Y. Peter Kang

Law360 (July 15, 2020, 10:28 PM EDT) -- As a number of states have enacted emergency orders and laws to shield nursing homes from coronavirus-related civil suits, plaintiffs attorneys say they won't be stopped from filing suits thanks to immunity exceptions and potential constitutional challenges.

Lawmakers in states that were hit hard early on in the COVID-19 pandemic, such as New York, New Jersey and Massachusetts, were quick to enact executive orders or legislation to provide health care providers with a liability shield so they could give much-needed treatment without the fear of getting sued.

As of June 15, more than 16 states have provided nursing homes with some form of immunity, with the vast majority containing exceptions for cases of gross negligence or willful misconduct.

After nursing home industry lobbying groups in April pushed for similar measures in states with high nursing home populations, such as California and Florida — efforts that have been unsuccessful thus far — plaintiffs attorneys said the groups were taking advantage of the pandemic to push their tort reform agenda. They argued that the gross negligence standard is too high of a bar to overcome.

Despite the controversy, plaintiffs attorneys in states that have provided liability shields to nursing homes say they are still reviewing and taking on medical malpractice cases over coronavirus infections or deaths.

"There is still exposure for nursing homes," said Tara R. Devine of Salvi Schostok & Pritchard PC in Illinois, who handles nursing home negligence and abuse cases. "Do I like the fact that we have to prove a higher standard? Of course not. But it's not impossible. After doing a thorough investigation that shows a nursing home was negligent and a patient died, I think they can and should be held responsible for that."

Illinois Gov. J.B. Pritzker issued an executive order on April 1 granting civil liability immunity to health care providers providing medical treatment in support of the COVID-19 outbreak, absent gross negligence or willful misconduct.

Despite the order, a number of Illinois nursing homes have been hit with coronavirus-related lawsuits. Westchester Health and Rehabilitation Center, a long-term care facility that had 47 confirmed cases of COVID-19 and at least 12 deaths, was sued in June over the death of an 83-year-old resident, according to plaintiffs firm Levin & Perconti.

The firm alleges the facility failed to implement proper infection control protocols and negligently allowed symptomatic workers to treat patients without wearing personal protective equipment, in violation of federal health guidelines.

"The gross negligence here truly shocks the conscience," Levin & Perconti partner Michael Bonamarte said in a June statement. "An entire population of vulnerable elderly people … were unprotected from this deadly virus in a facility that had been warned again and again, before and after the start of the pandemic, about the dangers of its poor infection control practices."

Devine said that, due to the liability shield in her state, plaintiffs attorneys are only taking the best cases, because working on a contingency basis requires a significant financial investment.

"You're going to want clear-cut cases of gross negligence. Typically, you don't know right away if it's meritorious, but attorneys will be looking at the records and other evidence using the lens of the higher standard," said Devine, who noted that she is currently in the evidence-gathering stage for two prospective suits.

She added that plaintiffs attorneys "are well versed with immunity, we come up against that all the time" in cases involving governmental entities and public school districts.

Steve Watrel of Coker Law, a Jacksonville, Florida, attorney who specializes in nursing home negligence, said plaintiffs attorneys will be on the lookout for the most egregious cases.

"I think these cases have to be chosen carefully," Watrel said. "But most nursing home attorneys are very skilled at what they do; they won't take bad cases on, period."

And even though Florida has not yet enacted a liability shield for nursing homes, he said COVID-19 outbreaks at Suwannee Health and Rehabilitation Center in Live Oak and Signature Healthcare in Jacksonville were possible examples of gross negligence.

"[Suwannee Health was] covering up the fact that [workers] had symptoms," he said. "That's gross negligence if not intentional misconduct. Gross negligence is really just conscious indifference. It's a higher burden to prove; you're going to have to show management or employees knew what they were doing was wrong but didn't care. But if the claims against Suwannee Health are true, that's gross negligence."

Watrel said plaintiffs lawyers in states with immunity laws could also opt to lodge constitutional challenges, because the families of residents killed by the virus could claim the laws and orders violate their equal protection rights.

"You can't just immunize [nursing homes] from liability because you're basically wiping out a class of people who have been harmed," he said. "I think ultimately a lot of those laws are going to be found unconstitutional."

One pro-business lobbyist acknowledged that the liability shields could face constitutional challenges but expressed confidence that the states that passed laws rather than gubernatorial executive orders will pass muster.

"Everything can be challenged in court but certainly the statutes will stand the test of time a little bit better," said Tiger Joyce, president of the American Tort Reform Association. "They reflect a broader perspective as they are enacted by a number of lawmakers, not just a single governor."

William J. Mundy of Burns White LLC, who represents long-term health care facilities in Pennsylvania, said states operating under executive orders could face more scrutiny than states with immunity laws on the books.

"I think the executive orders are more likely to face challenges" due to the separation of powers doctrine, he said. "But whether they will be knocked out depends on each state's constitution as some give the governor a lot of power. There's a mixed bag here, it would be a state-by-state determination whether an executive order would exceed constitutional authority."

Pennsylvania Gov. Tom Wolf issued an executive order on May 6 granting limited immunity to medical professionals, but explicitly excluded health care facilities such as nursing homes, according to Mundy.

Constitutional law expert Robert Peck of the Center for Constitutional Litigation PC said constitutional challenges could certainly be viable, although the success of a challenge will depend on a number of factors, such as the political makeup of any given state's high court, the language of the law or order, and the state's case law.

"The devil is in the details," Peck said. "The executive orders were issued without legislative operation, so there is a question of separation of powers. Many states have an access-to-courts provision in their constitutions, so the question is how do you balance that out, is there a compelling interest that allows that immunity?"

Peck said that, in many ways, the nursing home liability shields operate similarly to a cap on damages.

"This is essentially a cap at zero. So you could make the same arguments in the cap cases," he said, such as arguing that the laws deprive an individual of the right to a jury trial.

One could also contend that state lawmakers failed to confer a "quid pro quo" benefit to injured parties in exchange for advancing a legislative goal such as allowing health care providers to operate without fear of liability, according to Peck.

"It's rare that governments can establish immunity without some kind of quid pro quo," he said. "I just don't see how this qualifies."

--Editing by Emily Kokoll and Nicole Bleier.

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