‘Trial impossible’: Families find few options to pursue long-term care for COVID deaths


First part of two stories. Read the second part here.

Suzanna Smith’s mother was supposed to spend a few weeks in a drug rehab center in Fitchburg to recover from surgery, but she never made it home.

“She had back surgery and died of COVID. It’s still so surreal to me, ”said Smith. Her mother, Masae Hodges, was 73 when she died last year.

Hodges is one of more than 6,000 residents of nursing homes and other long-term care facilities in Massachusetts who have died from COVID-19, about a third of all COVID deaths in the state. But for grieving loved ones like Smith, there are few legal options if they think these establishments should have done more to protect their loved ones during the pandemic.

Smith said his family was unaware that the facility, Fitchburg Healthcare, had experienced cases of COVID when Hodges was transferred from the hospital. After his arrival, they struggled to get information about his condition.

“There were days when we wouldn’t get any calls, and we would call the facility, and sometimes the phone would ring and ring and ring,” Smith recalls. “One day I called and let the phone ring for 20 minutes straight. Finally someone picked up the phone.

The Massachusetts Department of Public Health, not facility staff, informed Smith’s family that his mother had contracted COVID. Smith recalls that a government employee called his father to tell him about the test results.

“And it was a real surprise to my dad because the nursing home never, ever communicated that they were testing my mom, one. And two, that they had COVID patients, ”Smith said.

She and her father were furious. They were unable to visit her mother due to COVID safety rules, and her health rapidly deteriorated.

Hodges was sent to a nearby emergency room five days after testing positive. Smith spoke on the phone with the doctor who looked after his mother there.

“They were saying her lips were bleeding, that she was severely dehydrated,” Smith said. “The Leominster hospital doctor assumed she had been dehydrated for several days.”

Hospital officials said they could not confirm any details about Hodges’ condition, citing patient privacy laws. Fitchburg Healthcare also said it couldn’t comment on a former resident, but provided a written statement to WBUR.

“The safety of our residents and employees is of the utmost importance and is always at the center of all the decisions we make,” the facility wrote, adding that the state has started to audit the infection control procedures of patients. nursing homes during the pandemic. “Fitchburg Healthcare received two on-site audits and in both cases received a perfect rating. “

Suzanna Smith with her mother, Masae Hodges, about 10 years ago, shortly after Hodges beat cancer. (Courtesy of Suzanna Smith)

Say goodbye

Hodges was born in Japan, where she met Smith’s father. She was known in the family to be strict and straightforward but also funny. She was an artist who loved to paint portraits in both traditional and modern Japanese styles.

On May 5, 2020, the family had to say goodbye on FaceTime.

“It’s a very traumatic experience watching your mother the way she was with the ventilator in her mouth, unable to speak,” Smith recalls, fighting back tears. “But she could hear us because you could see her cry, so she knew we were there. And I don’t know what those tears were for. I don’t know if she was in pain or if she wanted us to let her go.

Smith would like to sue Fitchburg Healthcare for her mother’s death, but so far she has not found a lawyer willing to help her.

“We hear it would be an impossible trial,” Smith said.

The main obstacle is federal and state emergency laws designed to grant long-term care facilities, hospitals and other health care providers broad immunity from legal actions related to their care during the pandemic. .

The push to protect health care providers

Massachusetts legislation to protect healthcare facilities and their employees from lawsuits was introduced by Governor Charlie Baker in April 2020, at the start of the state’s first COVID wave.

“I cannot stress enough the urgency to pass this legislation,” Baker wrote to lawmakers as they assessed the measure. “We need to ensure that the fear of responsibility does not prevent the Commonwealth and its medical institutions from acting decisively to provide the kind of medical response we need during the pandemic.”

State Senator Cindy Friedman, a Democrat from Middlesex County, is deputy chair of the committee that considered the bill.

“It was a complete and utter crisis [and] I will say our health care system really did measure up, but they needed support, ”Friedman said. “And they knew what they needed, and that’s what they were asking for, and that’s what we gave them. And I absolutely believe it was the right thing to do.

With little debate, the bill was enacted nine days after its introduction. The protections were retroactive to the governor’s declaration of a state of emergency on March 10, and ended when it was lifted more than a year later, in mid-June 2021.

Governor Charlie Baker speaks to reporters during a State House press conference on March 10, 2020, the day he declared a state of emergency due to the coronavirus pandemic.  (Robin Lubbock / WBUR)
Governor Charlie Baker speaks to reporters during a State House press conference on March 10, 2020, the day he declared a state of emergency due to the coronavirus pandemic. (Robin Lubbock / WBUR)

Those pushing for the bill included the Massachusetts Hospital Association, insurance companies and nursing homes.

“Like other healthcare providers at the start of the epidemic, long-term care facilities have faced unprecedented shortages of COVID-19 tests, essential personal protective equipment and funding to secure staff, ”wrote Tara Gregorio, president of the Massachusetts Senior Care Association, which represents many long-term care facilities, in an email to WBUR. “Additionally, state and federal guidelines for public health officials were constantly evolving and changing as regulators learned more about the virus. “

Massachusetts is far from the only state that has rushed to adopt COVID protections for health care providers. Nearly 30 other states have similar laws in the books, and a federal measure also provides some immunity from liability.

These measures set the bar high for lawsuits on behalf of families who believe long-term care operators should be held accountable for COVID outbreaks and deaths in their facilities. In Massachusetts, state of emergency law requires plaintiffs to meet a standard known as “gross negligence.”

“If you hear something and you’re like, ‘OMG, I can’t even believe this could happen,’ it’s probably a gross negligence situation,” said Kathy Cook, a lawyer who litigates malpractice cases in Massachusetts.

Close the doors to the courtroom

Cook’s office has only taken on one medical malpractice case during the period covered by the immunity law, and she says it was unrelated to COVID. She thinks her office is not alone.

“There’s a general feeling among bars that deal with this type of case that they’re going to have to look really, really bad so that we can even look at them, even consider them,” Cook said.

Other factors beyond immunity laws may discourage lawyers from taking such cases. One is a general lack of evidence as COVID restrictions have kept visitors from accessing health facilities for many weeks. Another is the fear that jurors will be more understanding of caregivers, who were on the front lines of the crisis.

Because it is so difficult to file a complaint, some legal scholars are now raising questions about the wisdom of COVID immunity measures.

“The passage of these immunity laws is not justified in one way or another by an emergency,” said Lawrence Gostin, professor of global health law at Georgetown University.

Gostin argues that there is no research or other evidence to show that immunity from liability laws benefits public health. The real issues in an emergency, he says, are issues such as surge capacity in hospitals, the availability of medical equipment, and the need for new and innovative therapies.

“These are the critical aspects of dealing with COVID,” he said.

Long-term care facilities can still be held criminally responsible. Currently, there are at least two ongoing investigations in Massachusetts regarding facilities in Holyoke and Littleton.

But patient advocates say families need more options. Mike Festa, State Director of AARP, believes closing the courtroom doors during the pandemic was a mistake.

“If nursing homes believe they have a legitimate defense that when this happened they were taken aback in a way that reasonable people would say, ‘It’s not theirs. fault ”, that they tell it to a jury. Let them tell that to a judge, ”Festa said.

This is the opportunity that Suzanna Smith’s family is hoping for. She knows she can’t bring her mom back, but she wants to make sure the next patient gets better care.

“Money doesn’t make sense, I have enough money. I don’t care about that, ”Smith said. “I want responsibility.

“No one is immune to aging, and I want to be in a facility that takes care of me, that empathizes with patients, that provides quality care, that provides basic necessities such as than water and food, I don’t even know if it was provided or not.


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