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Long-term care liability amidst a pandemic

Posted by John Ballard | Jul 13, 2020 | 0 Comments

            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 plaintiff's 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 it is 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 are going to 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 a 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 there of, 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 to 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 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)

About the Author

John Ballard

John Ballard is a third generation attorney following in the footsteps of his grandfather, Jack Butler, and his father before him, Howard "General" Butler. Born and raised in Williamson County, John has spent his life in Middle Tennessee. Upon graduating with a Philosophy degree from Samford University, enrolled in Nashville School of Law where he went to school at night while working at his grandfather's law practice in Nashville. After learning the law from one of Nashville's legendary attorney's John spent two years as Judge Seth Norman's court officer in Davidson County Criminal Court Division IV. Working for Judge Norman gave John a unique opportunity to get to know attorneys as well as criminal defendants before graduating Law School in 2014, wherein he was awarded the Moot Court Award. John began his law practice at 1308 Rosa L Parks Blvd with over a dozen of Nashville's best criminal defense attorneys. While developing a criminal defense practice, John learned that there was a need for a robust law practice that could serve many different legal needs of the community. In addition to needing contracts, civil litigation, document generation, often times the community needs someone to help them jump hurdles and cut through red tape. It may be dispute regarding insurance, employment, codes, local government, or regulations, and knowing the right people and how to navigate seemingly complex issues is important. Working to find a solution without litigation is important, but sometimes the only way to resolve an issue is to let the judge decide. John has spent most of his career in court arguing and winning cases in front of juries and judges on a myriad of issues. His background means that he is familiar with not only the courts but the judges, attorneys, and court staff as well. He is comfortable in the courtroom litigating complex issues because he comes prepared and outworks the other side. John has recently moved his main office to Franklin, Tennessee and brings with him the experience, knowledge, and reputation from Nashville, but also as a native to Williamson County.

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