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April 26, 2023

The Case for a Qualified Dignity of Risk Liability Shield for Long-Term Care and Nursing Facilities

By Matthew Espino

The case for a qualified dignity of risk liability shield (QDR liability shield) for long-term care and nursing facilities and providers (LTCFs), as described herein, is to provide a safe harbor from liability where an LTCF acts reasonably to preserve an individual’s right to be treated with dignity, exercise the dignity of risk, and express their personal autonomy while receiving care and assistance in long-term care settings.

LTCFs provide essential medical, nursing, assisted-living, and social services and care to elderly and disabled individuals, many of whom require some level of assistance with daily activities, such as bathing, dressing, and eating. Because many individuals receiving care and residing in LTCFs rely on their caregivers’ supervision, assistance, and advocacy to perform these daily tasks, LTCFs are often held to a heightened duty of care to safeguard such individuals from injuries caused by the LTCF and/or its staffs’ negligence, abuse, or inadequate care.

Relatedly, because many elderly and disabled individuals receiving care from LTCFs are dependent on LTCFs and their staff to express their preferences and boundaries, LTCFs are also charged with respecting and preserving such individuals’ personal autonomy rights. Two patient rights that are particularly relevant to this analysis are the patient’s right to be treated with dignity and right to self-determination, which are provided for under federal regulations, 42 CFR § 483.10(e), (f), as follows:

(e) The resident has a right to be treated with respect and dignity, including: …

(3) The right to reside and receive services in the    facility with reasonable accommodation of resident needs and preferences except when to do so would endanger the health or safety of the resident or other residents. …

(f) The resident has the right to and the facility must promote and facilitate resident self-determination through support of resident choice, including but not limited to…

(1) The… right to choose activities, schedules (including sleeping and waking times), health care and providers of health care services consistent with his or her interests, assessments, plan of care and other applicable provisions of this part.

(2) The… right to make choices about aspects of his or her life in the facility that are significant to the resident.

An individual’s dignity of risk is the right of an individual of mental capacity to weigh and voluntarily accept the consequences of their actions without having a protective restriction arbitrarily imposed by a third party, so long as their conduct does not present a foreseeable risk of harm to themself or others. An LTCF’s encouragement and preservation of an individual’s dignity of risk as a part of the individual’s right to be treated with dignity and right to personal privacy opens the LTCF to legal liability for the injuries that may result from conduct that the LTCF would otherwise intervene to prevent.

The above-described dual responsibilities imposed on LTCFs create a spectrum of legal liability spanning, on one end, tort and criminal liability for injuries caused by an LTCF’s negligence, abuse, or inadequate treatment and, on the other end, violations of an individual’s rights caused by an LTCF’s protective restraints on an individual’s movement, conduct, and autonomy. To strike a balance between these dual duties, fourteen states have recently enacted supported decision-making agreement laws that seek to promote individuals’ right to live within their capacity by allowing such persons and their caregivers to enter into agreements that protect such caregivers from varying degrees of liability arising from the decreased supervision provided under the parties’ supported decision-making agreement as an alternative to guardianship.

While most legal claims asserted against LTCF entities and staff arise from injuries to an individual who is receiving care and/or assistance from the LTCF, caused by the entities or staff’s alleged negligence, abuse, or inadequate care, an increasing amount of tort claims against LTCFs arise from injuries caused by such individual’s knowing and voluntary conduct where the LTCF entities or staff did not intervene to prevent the individual from acting.

There are strong arguments that LTCFs should receive the benefit of a QDR liability shield for tort liability arising from injuries caused by an individual’s knowing and voluntary conduct where the LTCF’s intervention would have violated the individual’s right to be treated with dignity. A possible balancing test for the application of the QDR liability shield may turn upon whether the individual’s right to be treated with dignity is outweighed by the likelihood of harm to the individual and others. Patients’ rights advocates may argue that the QDR liability shield should not be applicable where (1) an individual’s lack of mental capacity prohibits the individual from making a willful and voluntary assessment and choice whether to assume the risk and consequences of a particular action or (2) where the risk that an individual’s conduct would injure themself or others was clearly foreseeable or known by the LTCF and the LTCF did not take reasonable steps to supervise the individual’s risky conduct or prevent the foreseeable or known harm in compliance with 42 C.F.R. § 483.25(d).

The use of such a balancing test in the application of the proposed QDR liability shield is supported by the Fourth Circuit Court of Appeals’ reasoning in Century Care of the Crystal Coast v. Leavitt. In Century Care, the Court rejected a skilled nursing facility’s argument that its alleged failure to supervise and prevent a resident from smoking cigarettes while receiving oxygen, which caused him to suffer burn injuries, was outweighed by the LTCF’s duty to respect the resident’s right to privacy under 42 C.F.R. § 483.10(e)(1), because “Century Care did not take even the most minimal steps to prevent the dangerous accidents that can result, for example, when fire and oxygen mix, or when a mentally impaired resident wanders away.” The Court agreed with Century Care that a delicate balance must be struck between its competing duties to care for and supervise the resident and respect the resident’s privacy. However, even though the resident’s privacy right may have been implicated by Century Care’s intervention, the Court found that any such concern was outweighed by: (1) the obvious danger of lighting a fire near an oxygen bottle and (2) the patient’s diminished mental capacity to recognize such obvious danger.

Since the COVID-19 public health emergency (PHE) was declared on March 13, 2020, some LTCFs have argued that the Public Readiness and Emergency Preparedness Act (the “PREP Act”) completely preempts state tort law claims and immunizes LTCFs from legal liability for injuries and deaths arising from its COVID-19 response and countermeasures (or lack thereof) unless the injury or death was caused by an LTCF’s willful misconduct (the complete preemption and immunity arguments are hereinafter referred to as the “LTCF PREP Act immunity arguments”). In the relevant parts, the PREP Act provides:

(a) Liability protections.

(1) In general. Subject to the other provisions of this section, a covered person shall be immune from suit and liability under Federal and State law with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure if a [PHE] declaration under subsection (b) has been issued with respect to such countermeasure. …

(d) Exception to immunity of covered persons.

(1) In general. Subject to subsection (f), the sole exception to the immunity from suit and liability of covered persons set forth in subsection (a) shall be for an exclusive Federal cause of action against a covered person for death or serious physical injury proximately caused by willful misconduct, as defined pursuant to subsection (c), by such covered person. For purposes of section 2679(b)(2)(B) of title 28, United States Code, such a cause of action is not an action brought for violation of a statute of the United States under which an action against an individual is otherwise authorized. …

Federal courts have held that the PREP Act does not completely preempt state law tort causes of action because the PREP Act only imposes liability for injuries proximately caused by an LTCF’s willful misconduct and did not otherwise occupy the entire field of tort liability for injuries caused by an LTCF’s negligence, gross negligence, or other misconduct in the LTCF’s administration of a covered countermeasure.

The Fifth Circuit Court of Appeals, in Manyweather v. Woodlawn Manor, Inc., found that the PREP Act did not completely preempt the plaintiffs’ state law claims against a nursing home and its insurer, alleging that the nursing home’s negligence or gross negligence in failing or refusing to appropriately administer or use covered countermeasures to prevent the spread of COVID-19 among the nursing home’s staff and residents caused the elderly decedent-resident’s death after contracting COVID-19 within the nursing home. The Court reasoned that the other state law causes of action requiring the defendant to act with a level of scienter that is lower than willful misconduct, including medical malpractice, negligence, and gross negligence, are not preempted by the PREP Act, because the PREP Act does not encompass or create exclusive federal causes of action for such other causes of action.

Some legal commenters have criticized the LTCF PREP Act immunity arguments and similarly overbroad arguments for other liability shields as wrongfully seeking to relieve LTCFs of any real accountability for the injuries and deaths caused by negligent countermeasures taken to stem the spread of the COVID-19 pandemic and safeguard individuals from the risk of harm from future public health emergencies.

A proposed LTCF QDR liability shield, codifying the Century Care threshold inquiry and balancing test regarding tort liability for injuries caused by an individual’s knowing and voluntary conduct, would avoid the criticisms regarding excessive insulation of LTCFs from liability for negligent supervision and failure to provide adequate care that the LTCF PREP Act immunity arguments attracted.

A QDR liability shield, as proposed, would apply in cases where an LTCF has acted reasonably within the matrix of competing interests between providing adequate care to and supervision of the individual receiving care from the LTCF and respecting and preserving the individual’s dignity and personal autonomy rights. While existing state supported decision-making agreement laws provide varying degrees of liability protection to LTCF and non-LTCF supporting parties pursuant to an agreement between the individual and the supporting party, such a proposed QDR liability shield law may apply as an extension of individuals’ existing patient and resident rights when receiving care and assistance within LTCFs.

Such a codified QDR liability shield would require the LTCF to make a threshold showing that its intervention or prevention of the individual’s risky conduct would have violated the individual’s right to be treated with dignity or right to personal autonomy. Once some evidence supporting the threshold showing has been asserted, a sound balancing test would weigh the risk and severity of the violation of the individual’s right to be treated with dignity or right to personal autonomy against whether: (1) the individual lacked the mental capacity to weigh and voluntarily and knowingly accept their conduct’s risk of harm to themself or others and (2) the LTCF could have foreseen or actually knew that the individual’s conduct would cause harm to themself or others and failed to take reasonable steps to prevent or mitigate the foreseeable or known harm.

This article does not purport to fully examine the considerations that should be discussed and incorporated into any future federal or state liability shield but merely seeks to raise awareness of a QDR liability shield as a possible vehicle for addressing the liability predicaments that LTCF providers and caregivers may face in caring for some of the most vulnerable patient populations in healthcare.

    Matthew Espino

    Zumpano Patricios, P.A., Miami, FL

    Matthew Espino is a healthcare attorney with Zumpano Patricios, P.A.’s Miami office. He focuses his practice on representing healthcare facilities and providers in provider-payor managed care litigation and disputes. Matthew currently serves as the Web and Social Media Representative for the ABA Health Law Section Post-Acute Care Continuum Task Force. He can be reached at [email protected].

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