As of July 20, 2020, the Centers for Disease Control and Prevention reported more than 3.7 million COVID-19 cases, resulting in more than 140,000 deaths. The virus is primarily transmitted person-to-person by droplets, aerosols and fomites. Nursing homes, rehabilitation and long-term care centers and facilities caring for people with psychiatric disabilities assist persons of a wide range of ages, but the majority of residents are elderly. Individuals that require the services of these facilities are particularly vulnerable to respiratory pathogens such as the influenza virus and present environments conducive to infections which can be introduced into these facilities by staff, visitors and new residents with devastating consequences.
Nursing home residents account for nearly one in ten of all COVID-19 cases in the United States and more than a quarter of the deaths. Data shows that nursing homes have been overwhelmed by the effects of the virus. Nursing homes hold large populations of elderly residents many of whom have compromised immune systems due to pre-exiting medical conditions and age. Given the typical living arrangements which place patients and residents within close proximity to one another and caregivers supporting numerous individuals in the same facility, nursing homes and long-term care facilities present substantial opportunities for the spreading of infections. Nursing homes frequently provide a community-based atmosphere, consisting of “family” meals, entertainment, fitness classes, group activities such as card or board games, and a general encouragement of social interaction.
Within high-risk groups of our population, these environments and related activities offer the perfect opportunity for a virus such as COVID-19 to spread if proper precautions, including social distancing and enhanced hygiene protocols, are not established, initiated and followed. The CDC has set out specific guidance and recommendations for Nursing Homes & Long-Term Care Facilities to address potential COVID-19 exposures. Failure to follow a prevention and control program in these settings can result in illness, death and litigation. Oversights in the prevention and control of COVID-19 ultimately leads to potential legal exposure for nursing homes, long-term care facilities, individual healthcare providers, service providers and contractors that provide dining or cleaning services, as well as the individual employees themselves at a higher risk for becoming the target of litigation.
An example of the potential scope of legal liability faced by nursing homes and similar facilities as a result of the pandemic can be seen in a proposed class action filed in the United States District in Massachusetts pursuant to the Fourteenth Amendment and 42 U.S.C. § 1983. Sniadach, et. al. v. Walsh, et. al., stems from COVID-19 infections and deaths afflicting 160 Veterans that resided at the Soldiers’ Home in Holyoke, Massachusetts resulting in the deaths of 76 Veterans. The proposed class action alleges that the Soldiers’ Home, its management and staff failed to follow proper COVID-19 procedures.
The Holyoke facility was investigated and a report entitled “An Independent Investigation Conducted for the Governor of Massachusetts” was published on June 23, 2020 which examines the causes of the outbreak. The report lists alleged errors made by the Soldiers’ Home leadership team which included:
Sniadach was brought as a Federal civil rights action under §1983 against a series of individual defendants including the former Superintendent, the former Chief Nursing Officer and the former Assistant Director of Nursing of the Soldiers’ Home as well as the former Massachusetts Secretary of Veterans’ Affairs. The Complaint alleges that the defendants “showed deliberate indifference “to the basic needs of the veterans at the Soldiers Home.
The deliberate indifference standard is a necessary component to any claim for monetary damages under §1983 against individual government employees who would otherwise be shielded from liability under the Federal Tort Claims Act ("FTCA"). The legal approach and scope of the allegations in the Sniadach complaint focus on the acts and omissions of the individually named defendants apparently both to circumnavigate the pre-suit procedural requirements of the FTCA and in an effort to defeat a “qualified immunity” defense which still looms as a hurdle that the plaintiff must overcome with respect to the §1983 claims for monetary damages.
Lawsuits have been filed across the country against privately run nursing homes and long-term care facilities relating to injuries and deaths stemming from the COPVID-19 pandemic. Litigation has been filed in California, Illinois, North Carolina, and Washington. Many theories of liability apply to these COVID-19 based lawsuits including, but not limited to, negligence, wrongful death, willful and wanton misconduct, fraudulent misrepresentation, and violations of various local, state, and federal laws, seeking a variety of relief, including punitive damages in some matters.
Members of the country’s population that require substantial daily (and perhaps hourly) care, assistance and monitoring due to health issues are inherently at-risk even in the absence of the threats posed by a global pandemic such as COVID-19. COVID-19 substantially raises the threat level for this segment of our population far beyond the dangers associated with influenza. The scope of the potential health risks and corresponding exposure to legal liability will only increase. There are approximately 15,600 nursing homes across the United States, holding 1.3 million Civilians and Veterans alike. By 2050 the Census Bureau projects that the number of Americans age 65 and older will be 88.5 million.
At the same time that the health, and in fact the life, of America’s at-risk population dependent upon comprehensive care housed in nursing homes and other healthcare facilities, nursing homes and other healthcare facilities are severely threatened by potential liability over COVID-19 related claims. Along with an increase in COVID-19 illnesses, such facilities along with the owners, managers and employees of the facilities are faced with an exponential increase in legal liability. Some states have taken steps to limit or immunize the threat of litigation.
For example, as early as mid-April, Governor Baker of Massachusetts signed into law “An Act to Provide Liability Protections for Health Care Workers and Facilities During the COVID-19 Pandemic.” The law immunizes state and private hospitals, skilled nursing facilities, assisted living residences, rest homes, community health centers and other facilities along with healthcare professionals “in the course of providing healthcare services” during the pandemic from both lawsuits and liability unless the damages were “caused by an act or omission constituting gross negligence, recklessness or conduct with an intent to harm or to discriminate based on race, ethnicity, national origin, religion, disability, sexual orientation or gender identity by a health care facility or healthcare professional.”
A provision tracking the Massachusetts law was signed by Governor Cuomo of New York as part of the state’s annual budget. Other states including, Connecticut, Kentucky, New Jersey, North Carolina, and Pennsylvania and Oklahoma have enacted similar legislation and certain governors such as Governor Pritzker of Illinois have issued executive orders with similar effect. Legal challenges to these statutes and executive orders should be expected along with legislative initiatives to repeal such laws. The balancing act of protecting the health of those Americans with the highest risk of harm from COVID-19 against the legal risk to healthcare facilities and providers will undoubtedly continue well into the future.
 Individual government employees are immune from suit under the FTCA for “tort” claims. See 28 U.S.C. § 2679(b)(2).
 Government officials engaged in performing "discretionary functions" are shielded from liability for civil damages and immunity from suit, generally speaking, unless their conduct violates a clearly established constitutional right of which a reasonable person in the position of the official would have known. See Harlow v. Fitzgerald, 457 U.S. 183, 191 (1984); see also Stamps v. Town of Framingham, 662 F.3d 100, 104-05 (1st Cir. 2011); J.R. v. Gloria, 593 F.3d 73 (1st Cir. 2010). Qualified immunity is a question of law to be decided by the court in the early phases of the proceedings because, if the defense is available, it is immunity from suit and not just a defense to liability. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); Tatro v. Kervin, 41 F.3d 9, 15 (1st Cir. 1994).
 See Anderson v. Creighton, 43 U.S. 635, 640 (1987); see also Ahmad v. Department of Correction, 446 Mass. 479, 44 (2006). Although likely not an applicable concern in Sniadach, it is common for private facilities to incorporate mandatory dispute and claim arbitration clauses into contracts for care. Mandatory arbitration clauses, in most circumstances and jurisdictions, are recognized as valid and enforceable under both the Federal Arbitration Act and parallel state statutes. See e.g., GGNSC Administrative Services, LLC v. Schrader, 484 Mass. 181 (2020) (interpreting application of Massachusetts law to enforce mandatory arbitration clause in nursing home contractual agreement in wrongful death suit).
 It is expected that nearly a third of the population in Europe will be over 60 years old by 2050. See World Health organization Report on Ageing and Health (2015).
 Chapter 64 the Acts of 2020.