By Rick Green, Granite State News Collaborative

COVID-19 has taken a major toll at New Hampshire long-term care facilities, accounting for 865 deaths, or almost 70 percent of the 1,257 total fatalities caused by the virus statewide.

With the high death toll, litigation against nursing homes might be expected, but that’s generally not been the case.

Medical malpractice lawsuits are expensive to pursue and could be difficult to prove in the context of a worldwide disease that has been especially hard on elderly and ailing nursing home residents.

Also, an opinion issued nearly a year ago from then-New Hampshire Attorney General Gordon MacDonald, which was requested by Health Commissioner Lori Shibinette,  has had a chilling effect on pandemic-related litigation, said personal injury attorney Anthony Carr.

MacDonald, citing existing state statutes, opined that health facilities taking reasonable steps to comply with state orders related to COVID-19 are immune from legal liability for deaths or injuries related to emergency management activities.

 Gov. Chris Sununu declared a state of emergency in New Hampshire because of the pandemic on March 13, 2020. He has renewed the declaration 18 times, most recently on March 26. 

 MacDonald is now chief justice of the state Supreme Court. 

“The advisory opinion is awful, very, very bad, about as bad as it can get,” said Carr, a partner in the Shaheen and Gordon law firm in Concord. “And when I say bad, I mean bad for pretty much everybody, residents in nursing homes, their families, the entire community. 

“The only person or people that an opinion like this benefits is the very few at the top who benefit financially and who profit from the operation of nursing homes.”

If interpreted broadly, the opinion could be seen as applying to the understaffing and undertraining that are common features of medical malpractice lawsuits and could be at issue in the way nursing homes responded to the pandemic, Carr said.   

He said that “without a doubt” he has had to turn down potential legal cases because of the opinion. 

“We’ve had easily 20-plus intakes from various families who have lost a loved one due to COVID,” he said. “They’ve been all types of different circumstances, from facilities that have been the subject of articles and public criticism to more one-off cases. And all I can really say at the moment is that we are actively reviewing those types of cases and being very careful about what we file and when and to date we’ve yet to file a case where the main premise is a COVID-related death.”

Executive Director Marissa Chase of the New Hampshire Association of Justice, a trial lawyers association, said she also knows of no such lawsuit in the state. 

“There are always exceptions to every rule, but, as a general rule, the New Hampshire plaintiffs’ bar is quite small, experienced, and strategic about the cases they choose to pursue,” she said. 

Chase also said the legal opinion is fairly specific.

“Our interpretation of the AG’s opinion is that it does not insulate nursing homes from liability for all actions during the pandemic, and that regular negligence standards, which are grounded on reasonableness of conduct, have continued, and will continue, to apply,” she said.

“To illustrate: if an employee at a nursing home administered the wrong medication to a nursing home resident which resulted in serious harm or death to that resident, there is nothing in the Attorney General’s opinion that would preclude a cause of action on behalf of that resident or his/her estate. It is a very narrow opinion intended to protect nursing homes from liability for specific acts taken at the direction of a governmental entity during the pandemic.”

Nationally, there have been more than 200 wrongful death cases arising from COVID-19, none in New Hampshire, according to a complaint tracker maintained by the international law firm of Hunton Andrews Kurth.

Many states have approved laws to shield nursing homes from liability over COVID-19 deaths.

Senate Bill 63, pending in the New Hampshire Legislature, would protect businesses from lawsuits arising from exposure to the disease.

The New Hampshire Association of Justice opposes that legislation.

“COVID-19 business immunity helps bad actors and punishes good businesses who protected their community. Businesses who did the right thing to protect the community spent time and money in order to do so,” John Kenison, president of the association, stated in a letter to state Sen. Harold French, chairman of the Senate Commerce Committee. 

Kenison also said the state constitution protects negligence claims. 

Meanwhile, lawsuits unrelated to COVID-19 continue to be filed against nursing homes in New Hampshire, including facilities owned by Genesis Healthcare. The Pennsylvania-based company has 325 nursing homes across the country, including 28 in New Hampshire. 

Genesis spokeswoman Lori Mayer defended the company’s performance.

Records kept by the state Health and Human Services Department indicate 113 people died in COVID-19 outbreaks in the company’s nursing homes in New Hampshire. 

This statistic reflects the fact that Genesis is the biggest provider of nursing home beds in the state, Mayer said.

“Genesis operates approximately 32% of all skilled nursing facilities and is the largest operator in New Hampshire,” Mayer said. “While our facilities fared much better than our peers, our thoughts and prayers go out to all those who have lost their lives to COVID-19 during this difficult time.

“We are committed to providing high-quality care to our patients and residents.”

She said she could not comment specifically on pending litigation. Lawsuits were filed last year over the deaths of three people who resided in Genesis nursing homes, one in Bedford, one in Concord and one in Keene, a facility the company has since sold.

One involved a man with a heart condition, another was a person who inhaled liquid and a third was a resident who tripped and fell in a parking lot.

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