The son of a long-term care resident who died of COVID-19 has made an adequate argument that the facility where she lived was “grossly negligent” in her care, a finding that allows a lawsuit to proceed despite broad immunity provisions during the pandemic.
Friday’s unpublished opinion by the Kentucky Court of Appeals sends it back to square one after years of being bounced around as the provider fought to secure protection under both state and federal COVID immunity acts.
Such protections have been under increasing scrutiny in recent months, four years out from the hectic and deadly early days of the pandemic, when little was understood about how the coronavirus spread or how to prevent it.
KFF Health News this weekend reported that it found more than 1,100 COVID-related lawsuits, most alleging wrongful death or other negligent care, had been filed against nursing homes between March 2020 and March 2024.
“While there’s no full accounting of the outcomes, court filings show that judges have dismissed some suits outright, citing state or federal immunity provisions, while other cases have been settled under confidential terms,” KFF reported. “And many cases have stalled due to lengthy and costly arguments and appeals to hash out limits, if any, of immunity protection.”
While there have been spotty findings against providers — or settlements to resolve allegations — there have been few large payout for plaintiffs, with the exception of cases against state-run veterans homes in Massachusetts and New Jersey.
Most states either revoked or let such immunity protections expire along with the public health emergency. Those provisions were intended to ensure that facilities continued to accept patients, including, often, those with COVID, without opening themselves up to unknown financial liability. Healthcare providers have argued they needed such protections when public health policies were changing by the day, staff were hard to keep on hand, and the best supplies and treatments were sometimes impossible to come by.
“Caregivers were doing everything they could, often with limited resources and ever-changing information, in an effort to protect and care for residents,” American Health Care Association Senior Vice President Rachel Reeves reminded KFF.
Still, for many of the cases that nursing homes and other long-term care providers had sought to have thrown out, there still may be a day in court.
The case decided by the Kentucky Court of Appeals on Friday was brought by David Massamore, the surviving son of Jean Massamore, who lived at River’s Bend Retirement Community in Kuttawa. The community consists of a four-star, 40-bed skilled nursing unit and assisted living apartments.
In March of 2020, the community had begun prohibiting access to outside visitors but was still hosting social events for residents without requiring its employees to wear personal protective equipment.
In late-March 2020, Jean Massamore developed symptoms of COVID and died “a few days later.” According to the lawsuit, which was filed in 2021, the community had until that point “conducted no COVID-19 testing on staff or residents with symptoms.”
Her son’s lawsuit alleged River’s Bend “owed a duty … to provide custodial care, services, and supervision that a reasonably careful assisted living facility would provide under similar circumstances.”
He argued that the community “acted with oppression, fraud, and/or malice, or were grossly negligent by acting with wanton or reckless disregard for the health and safety of [Decedent]” and that his mother “suffered injury as a direct and proximate result of such negligence, oppression, fraud, malice, or gross negligence.”
Many state immunity provisions, including two separate standards in Kentucky, allowed cases to proceed if a plaintiff could prove gross negligence, and the Court of Appeals agreed a case could be made here. The court also confirmed earlier decisions that the provider did not qualify for federal protection because there was no allegation regarding the use of “countermeasures” needed to invoke the PREP Act.
While the case can proceed, the opinion does concede judges are granting “wide latitude” when reviewing the state’s common sense standard for a sufficient allegation of gross negligence. While the Kentucky COVID-19 Immunity Act disallows a dismissal when gross negligence can be argued, a jury could still find on the provider’s behalf.
A state Circuit Court considering the case previously noted “there is no sharp, well-defined, dividing line between simple negligence and gross negligence,” calling the standard in this case “a question for the jury.”
