How COVID-19 Healthcare Provider Immunity Affects Wisconsin Nursing Home Residents

The Wisconsin state government’s response to the novel coronavirus (COVID-19) outbreak has had unintended consequences. One of the most overlooked – and potentially most serious – is the immense legal protection for healthcare workers established by the COVID-19 relief bill enacted by the state legislature and signed by Gov. Tony Evers.

In effect, healthcare providers cannot be held liable for negligence resulting in injury or death that occurred between March 12, 2020, and July 10, 2020 (the period of the state of emergency declared by Gov. Evers plus an additional 60 days, as specified in the bill). Under the language of the act, immunity applies even if the provider’s work was not related to treating patients with COVID-19.

Healthcare provider immunity extends not only to doctors and certified professionals but to the employees working in nursing homes, assisted living centers, and other facilities providing long-term care. This raises frightening possibilities for cases of nursing home abuse and neglect that occurred between March and July of this year.

Other states have implemented similar laws that provide legal immunity for healthcare workers amid the COVID-19 crisis. However, Wisconsin’s healthcare immunity law may be the broadest, most sweeping legislation of its kind in the country.

In fact, we believe these provisions violate the Wisconsin Constitution – including the section on Remedy for wrongs:

“Every person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property, or character; he ought to obtain justice freely, and without being obliged to purchase it, completely and without denial, promptly and without  delay, conformably to the laws.”

What Does Healthcare Immunity Mean for Nursing Homes?

According to the section of the relief bill that establishes immunity for healthcare workers, providers as well as any “employee, agent, or contractor” hired by a healthcare provider are immune from civil liability for injuries and deaths caused by errors or omissions if:

1. The error or omission occurred during the state of emergency or the period thereafter specified by the bill (March 12, 2020 to July 10, 2020);
2. Health services are provided in “good faith” and/or in accordance with guidelines released by state and federal health agencies concerning COVID-19; and
3. “The actions or omissions do not involve reckless or wanton conduct or intentional misconduct.”

So, the only instances where immunity clearly does not apply for a healthcare provider or an employee, agent, or contractor is in cases where injury or death stems from “reckless or wanton conduct or intentional misconduct.” This may provide legal options for residents who suffered physical or sexual assault or financial exploitation, as these would almost certainly be considered wanton conduct or intentional misconduct.

But what about cases arising from the negligence of employees in nursing homes and other types of care facilities?

Arguably, the provisions of the healthcare immunity law deprive residents and their families of legal recourse for even extreme instances of errors and lapses of care.

What Constitutes Negligence in a Nursing Home Neglect or Abuse Claim?

The most egregious examples of injuries and deaths in nursing homes are typically the result of conscious, malicious acts on the part of one or more employees at the facility. However, serious injuries and fatalities can also occur due to negligence.

Legally, negligence is the failure of an individual to exercise the care that a reasonable person would take in the same situation. Healthcare workers also must abide by the standards of their profession in the treatment of patients and residents. In addition, nursing homes, assisted living facilities, and other long-term care facilities are subject to state and federal regulations.

In theory, all of these legal standards should protect the residents of nursing homes and other facilities from harm. Unfortunately, errors and omissions in these settings are a common occurrence.

Negligence in nursing homes and other facilities may involve:

• Failure to administer medications properly
• Failure to provide sufficient nutrition and hydration
• Failure to monitor and provide care for illness or infection
• Failure to call 911 in emergency situations
• Failure to aid residents with bathing and other hygiene
• Failure to exercise caution when moving residents or using a mechanical lift or other device to do so
• Failure to maintain the premises, resulting in falls and other injuries
• Failure to adjust bedridden residents in order to prevent bedsores
• Isolating residents
• Failure to supervise residents, resulting in them wandering away from the facility

Not one of these examples has any relation to COVID-19. And yet, under the healthcare immunity provisions of the Wisconsin relief bill, legitimate claims that seek to hold nursing homes and their employees accountable for negligence may be blocked simply because the injury or death occurred in the midst of a public health crisis.

What Does Healthcare Provider Immunity Mean for My Nursing Home Abuse Claim?

Because healthcare provider immunity just expired this month, the impact on injury and wrongful death claims remains to be seen. We expect, however, that nursing homes and other long-term care facilities will aggressively contest liability for claims that originate from an injury or fatality that occurred during the emergency period.

Despite the likely challenge to your claim, however, it is important not to delay or feel discouraged from taking legal action. It is still in your best interest and the interest of your family to contact a nursing home abuse lawyer as soon as possible.

Thorough, timely investigation is crucial for the success of your claim. Our experienced lawyers will review all of the facts and gather evidence of the neglect or abuse you or your loved one has suffered. We will aggressively pursue all of the compensation you deserve under the law.

How Studinski Law, LLC Can Help

Our firm has been monitoring the legislation that provided healthcare providers with immunity from civil liability during the COVID-19 crisis. We are prepared to challenge this law in court if it means achieving justice for our clients and for nursing home residents and their families throughout Wisconsin.

A key value at Studinski Law, LLC is carrying the burden for our clients. We recognize that serious injuries to or the loss of a loved one in a nursing home is difficult enough without having to deal with the rigors of a legal claim. Our team handles all aspects of your claim so you and your loved ones can concentrate on healing.

We are also committed to doing more to get you more. Our lawyers know the tactics nursing homes use to avoid responsibility, and we know how their insurance companies try to underpay or deny legitimate claims. We pursue the full value of your claim so you and your family are fully compensated for your losses.

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Contact Our Wisconsin Nursing Home Negligence Lawyers Today

Attorney Jason Studinski literally wrote the book on elder care in the state: “How to Keep Your Loved One Safe in a Wisconsin Nursing Home.” With our extensive litigation experience and dedication to maximizing the recovery for each client, Studinski Law, LLC is well-equipped to help if you or a loved one was the victim of nursing home abuse or neglect.

Please contact Studinski Law, LLC at (715) 343-2850 today for a free case evaluation. Our team serves clients in Plover, Marshfield, and all of Wisconsin.