AUSTIN (KXAN) — For weeks before he got sick, Maurice Dotson showed up to care for elderly residents at the central Austin nursing home where he worked. After contracting COVID-19, he died.
A month later, his family filed a wrongful death lawsuit against Regency Integrated Health Services, which owns and operates West Oaks Nursing and Rehabilitation Center, claiming they failed to provide proper protections for workers during the coronavirus outbreak.
“We have front-line employees that need to be provided the equipment they deserve,” attorney and registered nurse Kathleen Kearney said. “They are working on behalf of these companies, who should provide them whatever they need to do their jobs safely.”
Now, they’re worried changes to liability protections for businesses will prevent his family from seeing any legal recourse for their son’s death.
Last week, Senator John Cornyn (R-Texas) introduced the SAFE TO WORK Act, shielding all corporations, schools, healthcare organizations, non-profits and religious institutions from most COVID-19-related lawsuits.
The bill states, “Subjecting health care workers and facilities to onerous litigation even as they have done their level best to combat a virus about which very little was known when it arrived in the United States would divert important health care resources from hospitals and providers to courtrooms.”
Businesses are protected from personal injury claims if they have made “reasonable efforts” to comply with applicable public health guidelines. Health care providers are protected from coronavirus-related medical malpractice lawsuits and liability lawsuits, as well.
“As states gradually reopen their economies, frontline health care workers, small businesses, and schools face a second pandemic of frivolous lawsuits threatening to bankrupt them,” said Sen. Cornyn. “This legislation would protect those acting in good faith from being sued into oblivion while ensuring bad actors who willingly put their patients, employees, or customers in danger will still be held accountable.”
Under the provisions of the bill, a customer, patient, resident or employee looking to sue would have to prove that a business or provider had “engaged in gross negligence or willful misconduct that caused an actual exposure to coronavirus.”
They would also have to prove it with “clear and convincing evidence” — which attorneys for Dotson’s family pointed out is higher burden of proof than the usual “preponderance” of the evidence in a negligence case.
Kearney said, “This would effectively cause plaintiffs, or plaintiffs attorneys, to think twice before asserting claims like this.”
They worry that standards of care will suffer without the legal system, or the threat of lawsuits, holding employers accountable.
“Ironically, this bill is entitled the SAFE TO WORK Act, but it does nothing except make workplaces less safe,” said Kearney’s co-counsel Quentin Brogdon.
The President of LeadingAge Texas, George Linial, said the extra protections are necessary for employers who are “doing their best” to protect their staff and customers, particularly in the nursing home industry.
“This bill does not protect from gross negligence, so if a facility was actually not doing it’s job, it does not protect them,” he said. “I think it provides some level of protection for facilities who have followed procedures.”
His organization represents retirement housing and nursing home communities, which have been plagued by the coronavirus since an outbreak in Kirkland, Washington, months ago. He noted the nursing home industry was already highly regulated, and facilities have been trying to keep up with “ever-changing” guidelines from local and state health officials, along with the CDC.
“We all know [the virus] has found it’s way into communities, even with the best practices,” Linial said. “Facilities are struggling to survive.”
In his opinion, the threat of expensive, “frivolous” lawsuits could be the nail in the coffin for many senior living communities already struggling to stay open and serve residents.
By the numbers
According to a COVID-19 lawsuit tracker built by the law firm Hunton Andrews Kurth, there have been nearly 4,000 legal complaints filed nationwide since the pandemic began. 277 of those are in Texas.
Nine of those Texas cases have to do with conditions of employment, including lack of PPE, exposure to COVID-19 at work, wrongful death or personal injury.
The SAFE TO WORK Act would be retroactive, applying to cases from back in December of 2019. It’s written to remain in effect until October of 2024.
If it passes, the lawsuit would affect Maurice Dotson’s family’s case, but their attorneys told KXAN they plan to argue against any application of the law in their case, noting how disappointed the family was, after hearing about the proposed bill.
“Hurt would be an understatement,” Brogdon said.
Kearney added, “They are discouraged that our Senator here in Texas would file such legislation that seems so… the opposite of supporting workers like Maurice. They don’t feel supported by legislation like this. They don’t feel like his sacrifice is being supported or recognized.”