Nursing home protections limit families who want to sue

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Leah Burrough

In this Nov. 28, 2019, photo provided by the Burrough family, Bessie Burden, center, poses with her daughters Theresa Burrough, left, and Lashieka Mitchell outside the Westbury Conyers nursing home in Conyers, Ga. Burden died Oct. 22, 2020, after becoming infected with the coronavirus during an outbreak at the nursing home. Burdens daughters blame the home for their mothers death, saying administrators kept the family in the dark about Burden being exposed to the virus and quarantined as a presumptive case. But the state has essentially blocked them from going to court. (Leah Burrough via AP)

In her room at a Georgia nursing home, Bessie Burden was so concerned about the coronavirus that she wore a mask — sometimes two — even when she slept.

With the home closed to visitors because of the pandemic, Burden's daughters worried about their spunky 77-year-old mother, who decades earlier had survived a stroke and had persevered despite heart disease, diabetes and a leg amputation. When Burden told them by phone that she felt ill and was being treated with supplemental oxygen — and her roommate had been taken away by ambulance days earlier — they became alarmed. A call with a nurse who sounded confused about Burden's care increased their sense of urgency.

The daughters called an ambulance to take their mother to a hospital. Once admitted, Burden tested positive for COVID-19. She died 10 days later, one of at least two residents of the Westbury Conyers nursing home to perish in an outbreak.

Burden’s daughters blame the Conyers, Georgia, nursing home for their mother’s death, saying administrators kept the family in the dark about Burden's being exposed to the virus and quarantined as a presumptive case. But the state has essentially blocked them from going to court.

Georgia is one of at least 34 states that have shielded nursing homes — along with other health providers and private businesses — from lawsuits over coronavirus deaths and infections during the pandemic, citing unforeseen challenges and economic hardships.

Many laws say providers can be sued only for COVID-19 deaths resulting from “gross negligence” — a legal standard that’s greater than ordinary negligence, which can include carelessness, but falls short of causing intentional harm.

“They’re saying negligent care is OK,” said Sam Brooks of the National Consumer Voice for Quality Long-Term Care, which advocates for nursing home residents. “This creates a standard that every nursing home resident could be subjected to harmful care without repercussions.”

The day that Burden died, Oct. 22, government inspectors reported her nursing home had done such a poor job controlling infections that residents were in “immediate jeopardy” of injury or death. Inspectors found the home had failed to report an outbreak that sickened at least 23 residents, placed infected residents in rooms close to uninfected ones and botched coronavirus test processing.