Nursing homes have been at the center of the novel coronavirus (COVID-19) outbreaks and deaths around the United States and South Florida. There are over 2,300 nursing homes with COVID-19 outbreaks as of April 13, 2020, according to the USA Today. The reason for those outbreaks can come from staff and visitors bringing the virus in from the outside and from not taking steps to prevent the spread of the virus once it is in the nursing home. Now, nursing homes are trying to get the Florida governor to limit their liability. In fact, nursing homes want the governor to extend sovereign immunity to them so that they can be held completely harmless from any liability relating to COVID-19. They are using their money and influence to try to get absolute protection.
Think about what that means for you and your family if you have a loved one in a nursing home. Nursing homes will have no financial incentive to make sure they safely take care of your family member and protect your family member from COVID-19 in the nursing home. The nursing home will not have to pay to treat any problems with your family member or to even pay for your family member’s funeral if they die from COVID-19. The nursing home will be able to simply walk away and say “not my problem” if they get their way with the new law.
That is not the first time this happened. The legislature already gave nursing homes a cap on damages, but in 2017, the Supreme Court found that it violated Florida’s Constitution because the amount of the cap was arbitrary and not rationally related to a legitimate government interest. See North Broward Hospital District v. Kalitan, 219 S. 3d 49, 59 (Fla. 2017). This immunity attempt is also unconstitutional but for a different reason: for-profit entities, like nursing homes, are not entitled to sovereign immunity. Immunity is only for the state and its agencies.
We discuss how nursing homes can be liable for not screening people and staff before they come into nursing homes in a previous article. Nursing homes have a duty to its residents to act reasonably. That includes taking precautions to ensure COVID-19 does not get into the nursing home and spread around. Nursing homes have been failing to do this. Nursing homes in Miami, Broward, and Palm Beach counties know they are going to face liability for this. Now, they want any responsibility for that liability taken away.