Immunity for Abuse and Neglect

Failure to Protect

WRAL reported that in September of 2020, a facility failed to protect a resident from a violent beating. Spring Arbor of Wilmington knew Garland Garrett’s roommate had a history of violent outbursts at the home. They did nothing to protect the vulnerable adult. The facility failed to supervise his roommate who beat the man in his bed while he slept.

Police ruled the killing a homicide, though the elderly assailant was never charged, due to his diminished mental capacity. You can’t blame the demented resident. The blame is on the staff that failed to supervise and protect.

Garrett lived the last six days of his life in “excruciating pain and suffering,” according to the lawsuit his family filed against the home.

Legal Immunity

Spring Arbor and its parent company, HHHunt Property Management, denied wrongdoing. Spring Arbor’s defense relies on an immunity clause that passed into law early in the COVID-19 pandemic. Nursing homes and assisted living facilities argue in abuse, neglect, and wrongful death cases that the law offers broad immunity beyond what lawmakers say they intended.

NCGS 90-21.133

The immunity argument is made in every case since the pandemic began. At least one judge has accepted the argument, dismissing a lawsuit now on appeal to the North Carolina Court of Appeals.

However, experts and legislators believe the immunity clause is not a shield for wrongdoing. Bad actors can and should be held accountable for their actions and resulting harm. The law has a chilling effect and it lowers accountability, which in turns lowers quality of care.

Other state lawmakers had the same take, noting that the law says providers must act in good faith, and that immunity doesn’t apply in cases of gross negligence or reckless misconduct.