Nursing homes claim legal immunity over COVID deaths

Some U.S. senior care facilities are relying on the 2005 PREP Act for their defense in cases where a resident dies from COVID-19 as a result of failings.

Relatives argue that's unfair and creating unnecessary delays.

Emma Jehle reports.

Georgia Clardy died in a nursing home in Kansas City in April 2020 after contracting COVID-19 - one of 100,000 such cases in facilities across the United States.

Her daughter Garnice Robertson says the home failed to prevent a deadly outbreak of the disease.

"I was, I was going there one to have them bring my mother down so I could see her because of something prior.

And when they brought her down, she had a mask on.

So they immediately came outside to me and said, 'oh, by the way, we know we have our, we have our first case or cases of the virus.'

So my question to them was, 'if you have a known case, why is my mother down in the lobby?

Why is she not in her room?

And, why haven't any of us been contacted?'

Because what they said was, 'we're sending letters to everybody.'

You can't send me a letter to get four or five days later, and the virus is in the facility." But the Riverbend Post-Acute Rehabilitation, where Georgia died, is one of at least 36 facilities claiming legal immunity in such wrongful death cases under a 2005 law known as the PREP Act.

It was amended recently following lobbying efforts by the elderly care industry.

The Department of Health and Human Services says it now applies to organizations who fail to provide appropriate protective equipment or properly train staff - an allegation in most of the nursing home lawsuits.

Law professor Mike Duff from Wyoming University: "The purpose of the act was to provide immunity to persons who are actually manufacturing and distributing countermeasures, vaccines, treatments and so forth, that are meant to counter a virus, an illness pandemic, just the kinds of things that were, that we're witnessing now.

And so there is sweeping immunity under this law so that however the liability might be styled, there's a lot of ways you can sort of characterize liability in law, like tort liability or some kind of contract theory.

It's very, very sweeping.

The only thing that's not exempted is willful or intentional conduct, but that's very, very hard to prove." So far, no judge has adopted the nursing homes' view of the law.

But legal arguments, about whether invoking the PREP Act means the cases should be held in a federal rather than state court, has led to months of delays for relatives like Garnice Robertson.

"If I entrust you with the health and welfare of my loved one, I expect you to hold that to the utmost.

And for, I think for them to allow laws to protect them, it's not right, it's just it's just not right.

So I feel... it's emotional for me even to think about it and talk about it.

But if I'm feeling the way I feel, how do you think all these other people feel about the system allowing them to get by with this.

It's just not, it's not right, it's not right and it's not fair because we now, for the rest of our lives, we have to deal with this and have all this happened because they're not held accountable."