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Legal Immunity

Fatal Neglect

ProPublica is a nonprofit newsroom that investigates abuses of power. Recently, they had an incredible story about Palestine Howze. A nursing home refused to transfer her to the hospital so she died of a preventable wound infection. Now, her family cannot get justice.

Palestine was a resident of Treyburn Rehabilitation Center, a NC nursing home. She suffered with a pressure injury or bedsore. Her daughters were told the bedsore was a small spot, no bigger than a quarter. In her medical records, staff noted that she would moan through the night.  The facility reassured them that the wound was under control.

Then on April 2, 2020, the facility allowed the sore to get infected. The rotting flesh and bone were cut away from the pressure ulcer. The facility failed to provide needed antibiotics as prescribed. The facility failed to communicate with the family as the wound worsened. The family grew suspicious. The health care power of attorney repeatedly sought to have their mother hospitalized.

The facility refused. As the wound worsened, a nurse wrote, “If condition declines,” daughter “would like patient sent to hospital.”

On April 14, Palestine Howze died, still at Treyburn.  And it wasn’t COVID-19. Howze had tested negative. It was gross neglect. A preventable death.

Treyburn does not have a good record. It has a one-star quality rating from CMS. It is in the bottom 14% of nursing homes nationwide. In 2018, Treyburn was fined $188,762 for injuring a resident and having a resident sit in a soiled diaper for hours. Over a three-year period, federal regulators cited more than 30 violations, including 12 citations in February related to resident care and treatment. The facility was cited for deficiencies again in July and October, including for an infected pressure ulcer.

Grief and Guilt

Her daughters were devastated. She wanted answers. She wanted accountability.

“I couldn’t mourn through my anger, because I felt guilty that I had failed her,” Lisa Howze said, “like there was something more I could have done to make them send her to the hospital.”

The family may get no relief. North Carolina gave nursing homes immunity from lawsuits. Signed into law in early May, North Carolina’s protections preclude even claims that don’t involve COVID-19 treatment. The new law, the Emergency or Disaster Treatment Protection Act, shields health care facility from cases of negligence if the facility was “providing health care services in good faith.”

Richard S. Saver is an expert in health law at the UNC at Chapel Hill. He said that nursing homes were short-staffed before the pandemic. By eliminating the ability to claim that staff shortages affected care, the state has made it impossible to hold nursing homes accountable for neglect.

“This has been an industry with a long and sad and complicated history of insufficient quality regulation,” he said. “Given that may be the norm and the custom, proving that this is so beyond the pale for bad faith is going to be an uphill battle for plaintiffs.”

The health care industry contributed more money to state legislative races than any other business sector over the past decade, according to the data collected by the nonprofit National Institute on Money in Politics.

For the Howze sisters, the law prohibits accountability and justice for their mother. It is not fair.

Tort Deform Hurts Quality

In Washington, D.C., Republicans are trying to provide immunity as part of national COVID-19 relief, However, legal immunity and other tort “reform” measures hurt quality of care.

In states where legal immunity is given, researchers at Northwestern University found declines in hospital patient safety. Once the risk of lawsuits fell, so too did hospitals’ incentives to maintain safety, the authors wrote in a recent paper examining the effects of caps in five states. In the years following the reforms, patient care worsened in areas like infection control and surgical injuries, compared with the 26 states that did not change their laws.

Northwestern law professor Bernard Black, one of the authors of the study, said nursing homes face a similar risk dynamic.

“Deterrence matters, and if you make people more liable, then they are more careful,” he said.

Hear more about NC immunity law on NPR.