Georgia Law Blocks Families of Nursing Home Residents from Suing Over COVID Deaths
A suburban Atlanta nursing home where 22 people died from COVID-19 has been faulted by state inspectors for failing to control infections, but relatives of people who died say they can’t sue because Georgia lawmakers last year blocked lawsuits unless plaintiffs can prove the difficult-to-meet standard of gross negligence.
WXIA-TV reports that multiple state reports faulted infection control at Westbury Nursing Home in Conyers, where at least 85 residents have been infected. That includes an October inspection where Georgia Department of Community Health inspectors found Westbury put residents in immediate jeopardy by keeping COVID-19 positive and negative residents in the same rooms, improperly performing COVID-19 tests, and failing to notify state officials.
Previous inspections in June and August also found Westbury wasn’t following infectious disease protocols.
Among patients who died was 77-year-old Bessie Burden. Lashieka Mitchell, one of Burden’s daughters, said she trusted the nursing home “wholeheartedly, and I wish I hadn’t.”
In early October, Burden told Mitchell that her roommate had started showing COVID-19 symptoms. Mitchell said she could hear her mom’s roommate coughing in the background on the phone.
The two remained inside the same room until Burden woke up one morning to find her roommate missing.
On Oct. 12, Burden started falling ill herself. While daughter Theresa Burrough was on the phone with her mom, she could hear her struggling to breathe. Mitchell went to the nursing home and called an ambulance.
“So, once the fire department came – the fire chief had actually come – he went in, he came right back out and told my sister, `I’m glad I’m getting your mom out because this place is covered in COVID,”’ Burrough said.
Mitchell said the fire chief told her a crew transported her mom’s roommate to the emergency room more than a week earlier, after she tested positive for COVID-19.
Hours after arriving at Emory University Hospital, their mom tested positive for COVID-19. Burden died about a week later. The last time she spoke to her daughters was over a video call.
Burden’s daughters said the nursing home administrator admitted to them the facility dropped the ball. “They said that they failed us, `We know we failed you,”’ Mitchell recalled. “That’s all they had said, is that they failed.”
The nursing home said its center submitted a correction plan to the state to address the violations cited in the October inspection.
“We believe it is important for our residents, their families, and the public to know that we have made good faith efforts to mitigate the spread of the virus based on rapidly evolving guidance and resident specific circumstances,” administrator Ron Westbury said in a statement.
Burden’s daughters would like to sue the nursing home, but can’t find a lawyer to take the case.
Atlanta attorney Moses Kim said the state has made it nearly impossible for families to file lawsuits against nursing home providers, even if there is evidence of neglect.
In April, Governor Brian Kemp signed an executive order limiting the liability of employees, staff and contractors of healthcare institutions and medical facilities during the pandemic, even if they admitted to making a mistake.
About five months later, the state legislature passed a temporary law preventing many lawsuits against healthcare facilities and other businesses, as long as owners post signs outside facilities alerting the public they assume the risk if they enter.
Before the governor’s order, attorneys typically needed to only prove negligence based on reasonable care a hospital, doctor or nurse would provide. Now, attorneys must prove gross negligence, which is a much higher burden.
“The public’s rights are being robbed,” Kim said. “And, what’s at stake is the wellbeing of our family members. When no one is kept accountable, what happens? People misbehave.”
According to the Georgia Department of Public Heath, at least 23,820 nursing home and long-term care residents in Georgia have contracted the virus since March. About 3,700 have died.
“There is nothing that will bring her back,” Burrough said. “There is no amount of money that will make it better, but I would like for them to be held accountable.”