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Illinois Governor J.B. Pritzker recently signed an emergency order (EO) meant to make it more difficult for people to sue hospitals and nursing homes that fail to stop the spread of the coronavirus within their walls. Specifically, the new EO (2020-19) says that nursing homes, assisted living facilities, and other similar living centers have no “civil liability” if a resident is injured or dies due to “any act or omission” during the COVID-19 pandemic as long as the facility was providing healthcare “in response to the […] outbreak.” Essentially, hospitals or assisted living facilities cannot be sued for any reason during the pandemic if they have made some attempts to stop the virus and care for residents who catch it.
If the emergency order is allowed to stand, then hospitals and nursing homes can only be held liable for resident deaths and injuries of any kind when “gross negligence” or “willful misconduct” can be proven. From a liability law standpoint, proving either circumstance can be difficult and sets up potential claimants and plaintiffs for an unreasonable uphill battle.
As might be expected, the EO is so broad, it has drawn widespread criticism from legislators, legal professionals, nursing home residents, and more. Attorney Terry Nofsinger of McNabola & Associates, LLC in Chicago was recently interviewed by the Chicago Reader to give his insight into the matter and why the EO has the potential to be extremely problematic.
Overbroad Protections Lack Legal Stability
In his interview, Attorney Nofsinger noted that Governor Pritzker’s attempt to protect all hospitals and nursing homes all at once from practically any nursing home negligence lawsuit was simply too broad. To make such a massive change that could hold up to a courtroom’s scrutiny, the governor would, historically speaking, need to go through legislative channels, not a spur-of-the-moment emergency order. A judge could likely use fair discretion to set aside the EO’s protections if a case made it to court.
However, he also warned that the EO had probably done enough damage already by simply deterring people from filing injury and wrongful death claims against nursing homes during the COVID-19 pandemic. Most people who hear about the legal change will, unfortunately, think they simply cannot file a claim because of the limiting law. They are not likely to be aware that a skilled attorney and a compassionate judge could still allow them to navigate the legal system in pursuit of fair compensation after their loved one falls ill or dies to the coronavirus while in an Illinois assisted living facility.
What is Gross Negligence, Anyway?
EO 2020-19 tries to stop any claims or lawsuits against nursing homes unless there is convincing evidence that the defendant acted with “gross negligence.” What exactly does that term mean under legal definitions? Attorney Nofsinger shared in his interview that there was no clear answer.
Using his years of legal experience and insight, Attorney Nofsinger explained that he searched records of jury instructions for any mention of “gross negligence” but came up empty. Given that the term is undefined, how to prove “gross negligence” will likely be a convoluted matter. If cases are not handled carefully, then the EO’s vagueness could benefit nursing home defendants, further chipping away at the rights of elderly residents.
Challenging Umbrella Protections for Hospitals and Nursing Homes
Arguably the strangest part of the new emergency order is how it tries to stop nursing home negligence lawsuits brought forth for any reason. You could reasonably expect that the EO would only account for cases in which a resident contracted the coronavirus while in the facility. Yet it instead attempts to build a legal immunity for any injury or death in an assisted living center while COVID-19 lockdowns are still in effect.
Does that mean that a nursing home could not be sued if a resident dies of dehydration or malnutrition? While the EO says a lawsuit would be blocked – except for cases of “gross negligence,” which we already explained has no clear definition and is, therefore, unreasonably difficult to prove – Attorney Nofsinger and many other legal professionals in Illinois think otherwise. He is hopeful that the emergency order will be ignored in any case brought forth not for a coronavirus-related illness or injury.
However, nursing homes and their insurance companies argue oppositely. According to proponents of the emergency order, the heightened safety and staff demands caused by the coronavirus have put nursing home facilities under stress and duress. They argue that COVID-19 infections and more resident incidents are unpreventable given the unprecedented challenges of the time. Of course, from a legal standpoint, medical providers are not to be excused for causing harm to patients just because they were “tired.”
Can You Sue a Hospital or Nursing Home for Neglect Right Now?
With Governor Pritzker’s confusing emergency order on the books, you might be wondering if you should bring a medical malpractice claim or nursing home neglect case against an assisted living facility during the coronavirus pandemic. It is our advice as long-time legal practitioners from McNabola & Associates, LLC to keep our options open. Allow one of our attorneys to review your case and decide if the EO actually limits your rights to compensation or if you should challenge the controversial order head-on.
To learn more about this ongoing story, you can click here to view the full Chicago Reader article featuring Attorney Terry Nofsinger. To see if we can help you file a claim against a negligent Illinois nursing home, call (312) 888-8700 and request a free initial consultation with our team.