Despite Ducey’s order, lawsuits could still target long-term care facilities
May 6, 2020, 4:35 AM
(Getty Images/Andrew Harnik-Pool)
(Getty Images/Andrew Harnik-Pool)
PHOENIX — Arizona is one of about a dozen states that have enacted laws or governors’ orders to protect long-term care facilities from lawsuits arising from the coronavirus pandemic.
Arizona Gov. Doug Ducey issued a Good Samaritan executive order on April 9 to make it harder for long-term care facilities to get sued.
The order protects such facilities from civil liability if they “acted in good faith” in the course of providing care, but does not eliminate the potential for lawsuits.
KTAR News 92.3 FM Legal Expert Monica Lindstrom said these facilities could be sued for negligence, wrongful death and breach of contract for patients who died of COVID-19 in their care.
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“When trying to determine whether a nursing facility was negligent, the court will look at what other facilities in that area were doing in similar situations and compare them,” she said.
In Maricopa County, 116 residents of long-term care facilities have died of COVID-19, accounting for 66% of the county’s total of 175 virus deaths.
One of these residents who’ve died is a 78-year-old man. He had been experiencing a cough, fever, shortness of breath and wheezing, according to a report from the Maricopa County Medical Examiner’s Office.
The report stated the facility “had COVID-19 positive patients and staff and had taken isolation precautions” but that “swabs were not available for testing.”
The man wasn’t tested for COVID-19 until after he died on April 19.
Supporters of Ducey’s executive order have argued long-term care facilities should not be liable for things that are beyond their control, including shortages of testing and protective equipment.
Lindstrom believes that long-term care facilities should not be held to unattainable standards.
“If there were not enough tests or products available through no faults of the facilities, then the facilities cannot be held responsible for failing to do the impossible,” she said.
Lindstrom does believe care centers should be held accountable when appropriate, adding that the governor’s executive order and similar measures taken in other states “should not allow facilities to be immune from gross negligence or willful misconduct.”
