Removing loved ones from nursing homes

SHREVEPORT, La. — In the months following Hurricane Katrina, Louisiana’s healthcare system became overwhelmed as droves of people fled New Orleans and needed medical attention.

“During a declared state of emergency anywhere in the state, any health care provider who in good faith voluntarily renders emergency care or first aid to assist persons injured as a result of the emergency whether the aid is rendered in the area subject to the declaration of emergency or elsewhere shall not be civilly liable for causing the death of, or injury to, any person or damage to any property except in the event of gross negligence or willful misconduct,” the law states.

John Hammons, a medical malpractice attorney with offices in Shreveport and Lafayette, was an advocate for the law when it was enacted in 2006.

“But (Katrina) was a generalized crisis, which in my estimation, is quite different from the COVID crisis,” Hammons said.

Hammons is concerned that the law will be too broadly construed during the public health emergency stemming from the COVID-19 pandemic. 

“My concern is, what happens in a situation where an orthopedist decides to do knee surgery on a patient in Shreveport today, and lo and behold, does surgery on the wrong leg,” Hammons said. “In the application of this statute, there’s no accountability in that medical care, or that incident, (which) has nothing to do with the COVID-19 crisis nor the delivery of health care within the context of COVID-19.” 

As nursing homes across Louisiana are reporting multiple COVID-19 cases and related deaths among their residents, with some homes seeing more than half of their residents test positive, personal injury attorneys are preparing to file lawsuits on behalf of families with loved ones in those homes.

“I've received several calls from attorneys around the state asking me to look into certain nursing home cases,” Hammons said. “Most of those attorneys are not aware, or at least the ones who've called we're not aware of this immunity statute.” 

Hammons said the statute could make for an uphill battle in nursing home lawsuits, as attorneys will have a higher burden to clear. The law still allows providers to be held liable in cases in which gross negligence or willful misconduct are found.

“In 40 years of doing medical malpractice litigation, I don't think I've ever had a single case in which a court concluded that the conduct of a healthcare provider would be defined is either gross negligence or willful misconduct,” Hammons said.

Hammons is calling on lawmakers to consider new legislation narrowing the statute, which he said could also be challenged in court on the grounds that victims and their families would be denied due process. 

“The effect now of applying that statute to circumstances that were not contemplated at the time leads to an obvious inequity or injustice for those who may be injured due to substandard medical care during this time,” Hammons said.


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