Miltenberg: “Fight Intensifies Over Covid-19 Legal Immunity for Senior Living,” Senior Housing News


As the long-term care industry continues to wrestle with the fallout from the coronavirus pandemic, another storm is brewing over whether to grant providers immunity from liability lawsuits stemming from the outbreak. Industry groups and some legal experts in favor of immunity argue that the unprecedented nature of the pandemic has placed undue strains on operations and bottom lines, all while communities work to maintain high quality levels of care and safety for residents. Senior advocacy groups and other legal experts contend that immunity for providers is an overreach, leaving families of residents will little legal recourse to hold operators accountable for cases of legitimate neglect and abuse … The states that have enacted immunity for long-term care providers — whether through permanent legislation or executive orders — have some wiggle room for plaintiffs to file liability lawsuits. In New York, immunity protects providers from litigation stemming from staffing or resource shortages such as safety equipment or personal protective equipment (PPE). It does not extend to cases of gross negligence, abuse or willful misconduct. Illinois’ executive order has a similar provision … Already, some senior living providers are facing lawsuits related to Covid-19, and Miltenberg is involved in a particularly high-profile action brought by E-Street Band guitarist Nils Lofgren. Lofgren’s mother-in-law, Patricia Landers, resided in a New Jersey assisted living and memory care facility operated by Brentwood, Tennessee-based Brookdale Senior Living (NYSE: BKD). She repeatedly eloped from the facility, including once in early April; a week after that elopement, she tested positive for Covid-19, the suit states. The legal complaint claims that Landers contracting Covid-19 was part of a larger pattern of neglect. Brookdale Senior Living declined to discuss the specifics of the suit, but the company’s public relations manager, Heather Hunter, shared a statement with SHN. “Brookdale’s top priority is the health and safety of our residents, patients, and associates and we continue to take steps to help ensure our communities and associates have the appropriate support in response to the Covid-19 pandemic,” she wrote. Even with the unique pressures applied to the industry by the pandemic, Lofgren’s attorney Miltenberg believes that allowing immunity for Covid-19 lawsuits will set a precedent by which providers will return to governments seeking immunity for other extenuating circumstances, which would be detrimental to the industry in the long-term. “How can they do that and not set a precedent whereby they start to look for immunity for other types of situations as they occur?” he said.

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