In September 2020, an 80-year-old resident of an adult care home in Wilmington was beaten in his bed by his suite mate.
His nose was broken. Other bones too. He had been assaulted in his sleep, and he lived the last six days of his life in “excruciating pain and suffering”, according to the lawsuit his family filed against the home, Spring Arbor of Wilmington.
Garland’s suite mate Garrett had a history of violent outbursts in the home, exposed in the lawsuit which includes nearly five pages of dated bullet points. Police ruled the killing a homicide, although the elderly attacker was never charged, due to his reduced mental capacity.
It was all inevitable, according to the lawsuit, and Spring Arbor did not care about both Garrett, a former North Carolina transportation secretary, and his killer.
Spring Arbor and its parent company, HHHunt Property Management, declined to comment on the matter, through their attorney. They have denied any wrongdoing in the lawsuit and that case is pending in New Hanover County Superior Court.
One of the many defenses advanced by Spring Arbor was based on an immunity clause that a unanimous General Assembly and Governor Roy Cooper signed into law at the start of the COVID-19 pandemic.
This clause was part of a much larger bill, and it was touted as a way to avoid frivolous lawsuits against healthcare providers doing their best to navigate through a global crisis and misunderstood disease. But increasingly, nursing homes and assisted living facilities have argued in wrongful death lawsuits that the law offers broad immunity beyond what lawmakers say they want.
Lawyers believe the immunity argument has been made in every wrongful death case in a nursing home or assisted living facility filed since the start of the pandemic. Lawyers for those facilities “would be silly not to,” said Martin Ramsey, who represents the Garrett family in Wilmington.
At least one judge accepted the argument, dismissing a lawsuit now on appeal to the North Carolina Court of Appeals in a process that could ultimately limit the reach of the law.
There is also pressure to repeal the law, although it does not appear to have momentum in the General Assembly. Senate Speaker Pro Tem Phil Berger, one of North Carolina’s most influential state lawmakers, said last week that he didn’t hear about the issue until WRAL News asks.
The law has received quite a bit of media coverage, however, and there is an online petition asking for changes. Berger and other key lawmakers, including House Speaker Tim Moore, told WRAL News they are open to considering changes, but nothing is on the horizon.
Because the immunity clause is tied to the state of emergency declared by Cooper in March 2020, the governor could override it by ending the state of emergency or changing its details.
Jordan Monaghan, a spokesman for the governor, said Cooper supports “lawmakers reviewing this provision” and that the administration “continues to work to identify changes needed to allow the state to continue to respond to the pandemic.” .
Cooper’s office, however, gave no timeline for changing the state of emergency, which Republican lawmakers were pushing him to reverse last week as his 2-year anniversary passed. The administration sent lawmakers a four-page letter Thursday — the same day lawmakers essentially adjourned their legislative session — outlining legislative measures that could replace the still-needed tools in the emergency declaration.
The immunity clause, Monaghan said, “is no shield against wrongdoing, and bad actors can and should be held accountable for their actions and any resulting damages.”
Other state lawmakers took the same view, noting that the law says suppliers must act in good faith and that immunity does not apply for gross negligence or reckless misconduct.
“We didn’t know what was going to happen with COVID [when we passed the bill]”, Moore said. “It’s really designed to address things directly related to COVID, not just general immunity.”
Others see broader application, and the law says it applies to health care providers affected “directly or indirectly” by the pandemic. Regardless of the intent, Charlotte attorney Elizabeth Todd said nursing homes and assisted living facilities use the clause as a crutch.
Todd’s clients have sued two establishments in wrongful death cases over the past two years, and in both cases those establishments invoked the immunity clause. Todd said the law also acts as a deterrent to other potential lawsuits and reduces liability, which in turn reduces the quality of care.
“All this law has done is protect the industry,” Todd said.
Adult care homes still struggling
The North Carolina Health Care Facilities Association, which lobbies for nursing homes in the state, says the immunity clause is still needed.
“The reasons for the Immunity Act make as much sense today as they did when the act was originally passed by the NC General Assembly in 2020,” said Adam Sholar, President and Chief of the management of the association, in a press release sent by e-mail. “North Carolina nursing homes continue to operate in an incredibly challenging environment.”
Eighty-nine percent of North Carolina nursing homes have had two or more COVID cases this week, and 42 percent are reporting a shortage of orderlies, Sholar said. In January and February, 10,000 staff were infected with COVID, he said.
Assisted living facilities, which provide a lower standard of care than retirement homes, have similar staffing issues. The president of the North Carolina Assisted Living Association told WFAE-FM in December that those facilities were “in a staffing crisis.”
Chris Smith represents the Treyburn Rehabilitation Center, one of the facilities that Todd’s clients have sued. Treyburn won a dismissal from a lower court, and now the case is before the state Court of Appeals, which heard oral argument in December. Smith said “the grace and space given by the General Assembly to state health care providers is extremely important to the delivery of health care in these abnormal times.”
“This law doesn’t and shouldn’t protect bad actors,” Smith said. “That is not the intent of the legislation, and the law is clear on that.”
Thirty-eight states have passed emergency ordinances or laws granting legal immunity during the pandemic, The Washington Post reported last year. New York repealed its immunity law in April, and attorneys and attorneys here said North Carolina’s law is similar to New York’s in scope.
“There are other states that have put in place these laws that were more specific to COVID,” said Lauren Zingraff, executive director of patient advocacy group Friends of Residents in Long Term Care. “At present [North Carolina’s] is very, very wide.
‘Too much power’
Lauren Cox and Kristin Goforth, whose father died last year shortly after moving into an adult care home in Greensboro, said they were surprised at the law’s limitation on immunity. They think their father died of neglect and plan to file a complaint. Todd is their lawyer.
The sisters started an online petition to repeal the North Carolina law, and it has about 1,200 signatures. They said they have contacted a number of North Carolina politicians on the issue, with limited success.
The General Assembly adjourned last week and may not return to legislation until May. Moore, the Speaker of the House, said he was only vaguely aware of the immunity issue. Like other Republicans, he called on Cooper to rescind the state of emergency.
“So those [liability] end of limitations,” he said.
Even if that happens, Todd said she would like to see the General Assembly retroactively restrict immunity, opening the door to more cases from the past two years.
Such retroactive changes are rare, but the immunity clause itself was retroactive by nearly two months, moving to May 2020 but applying since March 10, 2020, when Cooper declared a state of emergency.
Cox said the status quo gives “far too much power to nursing homes and not enough power to the people who are in nursing homes – the residents.”
“And I feel like that’s a way for nursing homes to take the blame off themselves,” she said.