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Long-Term Care Liability Amidst a Pandemic

John Ballard July 13, 2020

On July 1, Governor Lee signed Executive Order No. 53 in response to the legislature failing to pass the bill that would provide liability protection to health care and long-term care facilities. The bill in the legislature was seeking to raise the burden from negligence to gross negligence or willful misconduct. One of the big issues is nursing homes. Should plaintiffs be limited in their ability to recover against nursing homes? Should it be a cap on damages or should it raise the burden of proof?

Some of the answers here rely upon Public Policy decisions. It seems obvious why hospitals and healthcare workers should be granted certain immunity, which begs the question what else should be considered for public policy reasons? Some nursing homes have been hit awfully hard by the pandemic – of the 700 total deaths in Tennessee, 175 of them are from nursing homes. On one hand, nursing homes are essential and need to remain open, which means they need to remain staffed full time, so there are also public policy decisions there. On the other, not every nursing home has had large breakouts, meaning there is some negligence on behalf of a few, some of which are particularly bad. Meaning that nursing homes can remain COVID-free. So the issue becomes what should the burden of proof be?

Contact tracing is going to be important in every COVID case that is filed. In every case, the Plaintiff is going to have to prove that they got COVID-19 from the Defendant. This is a tough burden to carry, unless the person is in a location controlled by someone else that they themselves cannot leave – such as a nursing home. It is going to be much easier to sue a nursing home than a gas station. Contact tracing in Tennessee is not exactly accurate or even done much at all, so it is safe to say that a good portion of the COVID Cases will be against nursing homes. That being the case, I think that they should be afforded some protection. The protection that is currently being contemplated is raising the burden of proof to gross negligence or willful misconduct.

“Gross negligence” requires that the plaintiff put on evidence that shows conduct so bad that it would “'raise a conscious indifference to the consequences,' or a ‘heedless and reckless disregard for another's rights,' or ‘utter unconcern for the safety of others'”.1 Gross negligence is a much higher standard than negligence, which is not that high to begin with. To prove gross negligence, the plaintiff is going to have to win some big discovery battles. The first step is going to be to find out how it got in in the first place, which may be impossible to do in some cases, probably difficult in all of them.

The next step would be to discover all policies and procedures surrounding COVID. What the policy was, when it started, and how hard was it enforced will be important questions. Written manuals, or the lack thereof, will be important as well as e-mails, pictures (to show if there are reminders placed in the facility), and potentially text messages between staff. Additionally, a good case is going to have a lot of depositions of the people that worked there. A good case will be very visible so that family members of other residents can offer their insight to help build a case to surmount the gross negligence burden. So, it will be expensive. A negligence standard would be much easier, so is the right remedy a cap on damages?

Although I am usually strongly against the legislature capping damages, here it seems to be a better trade-off than raising the burden of proof. This is because the damages should be relatively low given basic mortality tables. Life expectancy, quality of life, the value of that life, are all on the low end of the spectrum at that point. Juries should not be awarding big 6 figure digits in these cases based just on negligence. Carve out a punitive damages provision and let appeals do the work for the offenders that warrant big verdicts. Leave the standard as negligence which will make discovery much less expensive and invasive.

I understand the need to protect businesses and prevent frivolous lawsuits, but there are some situations in nursing homes that are pretty bad and shouldn't require huge discovery costs (on both sides, mind you), and years of litigation. Making the burden of proof of gross negligence suffocates legitimate suits that should be brought. Putting caps on compensatory damages, but uncapping or increasing possible punitive damages allows legitimate cases to move forward with certainty, but frivolous ones are discouraged and the businesses are provided some certainty.

1. Cole v. Woods, 548 S.W.2d 640, 641-642 (Tenn. 1977)(citations omitted)