Seizing on the public’s fear of not being able to get quality healthcare due to the coronavirus pandemic, Florida nursing homes are lobbying the governor for lawsuit immunity. This is happening as many nursing homes refuse to release information on how many of their residents have contracted coronavirus and the governor refuses to make such information public. It has been reported that 1 in 5 coronavirus deaths are in elder care homes. Several media outlets, including the Miami Herald, are suing to obtain this information.
The Miami Herald reports that Governor DeSantis is “considering” a request that nursing homes be granted, by executive order of the governor, sovereign immunity, similar to what the State of Florida enjoys. Sovereign immunity is a concept that harks back to an earlier time in Europe premised on the idea that the sovereign or king can do no wrong and is therefore immune from suit. There are limited exceptions, but generally speaking, federal and state governments enjoy sovereign immunity, or protection from being sued for injuries caused by their negligence.
This extraordinary action—the governor acting alone to grant state immunity to a single private industry—would be infringing on the legislative process. The justification put forth for giving immunity to nursing homes is that it will allow the healthcare providers to focus on the patients and not have to worry about being sued. Their rationale is that facing no risk of being held accountable for providing bad medical care will somehow magically elevate the level of care nursing homes provide their residents. Proponents of this must conversely believe that nursing homes are currently incentivized not to provide their patients with acceptable care because they can be sued for medical malpractice. This is backwards.
One might like to believe that nursing homes have the purest intentions and that, without threat of being sued, they will provide the best care possible. This is simply not the case. Nursing homes are businesses. Doctors take the Hippocratic oath, but the businesses that employ them do not. They are in business to make money, and that pesky little thing known as the accepted standard of medical care often gets in the way. If given immunity, nursing homes will have no incentive to provide acceptable, much less better, care and will revert to their underlying purpose: operate their business to make money.
It is poor public policy to allow a private, for-profit business to have sovereign immunity or, for that matter, any immunity. All for-profit businesses must be fully accountable for their errors. Florida’s so-called medical malpractice reform, which limits in many circumstances the damages patients may recover, has in no way improved the medical care the residents of our state receive. It has benefited only insurance companies and healthcare providers by capping their risk and modestly lowering insurance costs.
The worldwide coronavirus pandemic is bringing many challenges to healthcare. Nursing homes face unique challenges because of the nature of their business and their residents’ situations. Accepting the obligation to care for our elderly requires that nursing homes do so in a non-negligent manner, and if they don’t, that they be accountable. Negligence is not acting reasonably under the totality of the circumstances. The circumstances at nursing homes require precautions proportionately matched to elderly residents living together with many common and shared spaces. Nursing homes must be judged by how they meet the challenges of coronavirus under the circumstances we now face, circumstances that include a new and novel virus. Deciding whether nursing homes acted reasonably must include consideration of all the circumstances, and that is exactly what juries rightly do and why the Founders enshrined in our Constitution the right to a jury trial for claims like medical malpractice . The law is designed to take unique circumstances into consideration. Nursing homes do not require further protection.
Lawsuit immunity for nursing homes or any other for-profit business is bad public policy and is bad for the citizens in Florida. This proposal should be rejected out of hand.