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By Thomas Goldsmith
When COVID-19 first appeared in early 2020, legislators in North Carolina and other states wanted to make sure providers weren’t unfairly penalized for treating the unknown new disease. Lawmakers addressed this by passing the Emergency or Disaster Treatment Protection Act as part of a COVID omnibus bill in May.
Now the state’s pandemic-driven emergency act is under attack from plaintiffs’ attorneys and others in North Carolina and nationally. They contend that the law may be shielding residential care interests from liability for harm to residents — even those who didn’t contract COVID-19.
One example came in a recently filed lawsuit against the owners of a Wilmington assisted-living center where a former state official died after a reported violent beating from another resident. Opponents of a broad interpretation of the law say the facility shouldn’t be able to “hide behind” its language. In the Wilmington case, the family and attorneys of the victim say that’s not what legislators intended in the 2020 COVID-19 Recovery Act.
“They didn’t expect that it was going to be far more broad than that and extend to literally anything that happens inside, as long as a nursing home can say that it was a result of a staffing or resource shortage,” said Martin Ramey, a lawyer with the Rhine Law Firm of Wilmington.
The Emergency or Disaster Treatment Protection Act portion of the 2020 statute (starting on p. 25) aims to support public health by “broadly protecting the health care facilities and health care providers in this State from liability that may result from treatment of individuals during the COVID-19 public health emergency under conditions resulting from circumstances associated with the COVID-19 public health emergency.”
‘Our hearts go out’
The Rhine firm and others are bringing suit against Spring Arbor of Wilmington in connection with the death of former state transportation secretary Garland Garrett, 80, who was allegedly beaten by another resident with whom Garrett shared a bathroom. Lawyers for Garrett’s family are claiming wrongful death as a result of negligence on the part of the long-term care center.
Randy Jackson, regional director of Spring Arbor Senior Living, sent North Carolina Health News a videotaped statement in response to questions: “Our hearts go out to the family members of Mr. Garrett,” he said in part, noting that care and safety is a responsibility the facility takes “very seriously.”
“Our policies and privacy laws prohibit us from discussing any of our individual residents or their needs,” the statement continues. “We can however adamantly state that the accusations Mr. Rhine has made about our care and our communities is untrue.”
When should emergency rules apply?
Spring Arbor had not filed a legal response at press time, but Garrett’s lawyers have already contested any use of the Emergency or Disaster Treatment Protection Act to exempt long-term care facilities from liability in egregious cases during the pandemic.
“It is expected that Defendants will shamefully attempt to shield themselves from Mr. Garrett’s death by hiding behind a strained interpretation of the Emergency Act,” Garrett’s lawyers say in a lawsuit filed April 15 in Superior Court in New Hanover County.
“The Emergency Act does not limit liability for health-care providers and health care facilities in circumstances in which a resident of such a facility is murdered by another resident known to have a long history of violent propensities toward others.”
Similarly intended changes in federal law are fueling a national debate over when it’s appropriate to curtail liability in lawsuits in long-term care. The dispute ultimately concerns how much protection the law could offer providers who saved thousands of North Carolinians’ lives during the pandemic but may have shown negligence in other instances.
“The law is not very specific,” said Greg Garrett of Wilminton, a son of Garland Garrett. “Things like this happen, and there needs to be accountability for it.”
Facilities wracked by COVID-19
Speaking generally as a health care defense attorney, Greensboro lawyer Terri Harris said the Emergency or Disaster Treatment Protection Act provision makes sense in the context of the pandemic. Throughout 2020, long-term care facility operators did everything they could to keep residents safe from the virus, Harris said.
“It is not something that they cause, so it’s not something necessarily that they should be liable for,” she said.
The advocacy group National Consumer Voice claimed in a news release that federal immunity laws that protect long-term care could make it harder to bring charges under Medicaid and False Claims Act law as well as in cases of disability discrimination.
“Advocates are gravely concerned that Congress may attempt to bar cases under federal law that seek injunctive relief to protect residents against civil rights violations, discrimination, and violations of the Medicaid Act,” National Consumer Voice officials said. “Further, whistleblower suits brought against entities for fraud or abuse may be placed in jeopardy.”
Blood-splattered death scene
Both Thomas Gunter, identified as Garrett’s attacker, and Garrett lived with dementia in a secure memory care unit at Spring Arbor. Garrett’s name may be familiar to people who kept up with state government in an earlier era. After rising through the ranks and serving as transportation secretary under Gov. Jim Hunt, Garland Garrett pleaded guilty to federal illegal gambling charges in 2002 and spent time in federal prison.
According to a state Department of Health and Human Services investigation, another resident attacked Garrett, identified as Resident #2, in Garrett’s room on Sept. 6. Garrett had a gash on his forehead, according to a state DHHS investigation.
“There was so much blood on Resident #2’s head it ‘looked like a murder scene,’” the report said. “The (medication aide) could not determine the amount that Resident #2 was injured due to the amount of blood.”
Again according to the DHHS report, the attacker, whom staff had previously described as acting combative and aggressive, was found lying on the floor of Garrett’s room with blood on his hands and forehead.
Durham negligence suit dismissed
The Garrett family’s lawsuit against Spring Arbor came in the wake of another family’s litigation against a different long-term care facility, Treyburn Rehabilitation. Durham resident Palestine Howze died from complications of a pressure sore that daughter Liza Howze charged in a lawsuit had not been timely or properly treated.
“Defendant Treyburn Rehabilitation Center and its employees and agents who were healthcare providers, among other things, negligently, carelessly, and heedlessly caused Ms. Howze to suffer painful and permanent injuries and death,” Palestine Howze’s estate charged.
National trade publications have described the Howze suit as an early challenge under the increased immunity for health-care providers under laws such as North Carolina’s Emergency or Disaster Treatment Protection Act. Superior Court Judge Orlando F. Hudson Jr. dismissed that case on Feb. 12.
The Howze family had failed to state a claim that would entitle them to relief, Hudson wrote.