By Attorney Jaclyn Kallie

Nationally, COVID-19 deaths in nursing homes have exceeded 20,000.  Faced with a potential flood of lawsuits, states are granting emergency protections from claims of inadequate care. In Wisconsin, health care providers have been granted immunity from civil liability, with certain exceptions, for injuries, deaths, or other types of damages resulting from their services during the COVID-19 crisis. This immunity provision, found in a newly created statute, sec. 895.4801, is part of a larger COVID-19 relief law that was signed into law by Gov. Tony Evers on April 15.

The law grants immunity to health care “providers” and “professionals,” which includes hospitals, nursing homes, assisted living facilities (Residential Care Apartment Complexes, Community Based Residential Facilities, and Adult Family Homes), hospice, physicians, nurses, physician assistants, and physical, speech, and occupational therapists. This immunity also covers employees, contractors, and agents of the aforementioned providers and professionals.

The law only provides immunity for services performed during the state of emergency that was declared by Gov. Evers in March 2020, and it will remain in effect for 60 days following the conclusion of the state of emergency, a date yet to be determined.

Scope of Immunity

Wisconsin is one of at least 15 states that have thus far enacted a law that explicitly provides nursing homes and long-term care facilities some protection from lawsuits arising during the crisis. The rationale behind the immunity is that this is an unprecedented crisis, and lawmakers believe that nursing homes should not be held liable for harm that occurred due to events that were beyond their control, such as testing difficulties or shortages of protective equipment. It seems reasonable to provide some immunity to health care providers providing emergency care in this pandemic. 

However, the version of the bill that became law was amended from its original version and eliminated the qualifier “2019 novel coronavirus” multiple times found throughout the bill. The result is that the enacted law states that health care providers and professionals are immune from civil liability for death or injury for services provided during the state of emergency as opposed to services provided in relation to or in response to the 2019 novel coronavirus.

This distinction has created a growing concern in the legal community that the statute may be interpreted to afford health care providers immunity from civil liability during the emergency, regardless of whether they are actually treating or responding to COVID-19. For example, if your loved one is provided the wrong medication during the pandemic, but it is unrelated to COVID-19, do the health care workers have immunity? Regardless, in light of the immunity, how will health care facilities be kept accountable?

Protections for Individuals Under the Care of Health Care Professionals

Even with the immunity in place, the law makes it clear that Wisconsin residents may still file lawsuits against health care providers under various scenarios. The immunity provisions only apply to conduct or services that are performed in good faith, and these services should be substantially consistent with emergency guidance from local, state, and federal government authorities. The legislation and statute do not define what is considered “good faith.”

The law does not grant immunity for intentional misconduct or conduct that is considered “reckless or wanton.” While the statute does not define what conduct is “reckless” or “wanton,” Wisconsin courts have generally interpreted “wanton” and “reckless” in different types of contexts as meeting a higher standard than mere negligence. These cases typically involve intent, an indifference to the consequences of one’s actions, and an unreasonable level of dangerousness, and similar such standards.

What Nursing Homes Should Be Doing

To combat infectious outbreaks such as the coronavirus, long-term care facilities need guidance from public health authorities. The Wisconsin Department of Health Services has issued updated guidance on how healthcare facilities can improve their infection prevention and control practices to prevent the transmission of COVID-19.  These protocols include the following:

  • Cancel communal dining and all group activities
  • Implement active screening of residents and staff
  • Remind residents to practice social distancing and perform frequent hand hygiene.
  • Screen all staff at the beginning of their shift for fever and respiratory symptoms.
  • Communications with residents and families should be proactive and clearly explain the reasons for the various changes.

Additional protocols can be found on the Wisconsin Department of Health Services website.  Failure to follow these protocols and resulting injury or death to a loved one may provide grounds for civil liability.

Gimbel, Reilly, Guerin, & Brown, LLP can counsel clients who have a loved one who has been injured or died while in the care of a health care provider or professional during the COVID-19 pandemic.  If you find yourself in need of advice, contact one of the Milwaukee personal injury attorneys at Gimbel, Reilly, Guerin, & Brown, LLP at 414-271-1440 to arrange a consultation to discuss your case.

Sources:

Wis. Stat. § 895.4801

‘Reasonable,’ or ‘repugnant?’ Wisconsin lawyers, health care groups debate fallout of COVID-19 legislation changes

https://www.dhs.wisconsin.gov/covid-19/ltc.htm

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