Kansas nursing homes would be immune from COVID lawsuits under this proposed law

Kansas could grant adult care facilities immunity from civil lawsuits if residents contract COVID-19, under a bill to be introduced in the House next week.

Nursing homes have been a hot zone for the coronavirus across the country. In Kansas alone, more than a thousand deaths have been linked to outbreaks in facilities.

The bill would give nursing homes protection from civil lawsuits if they are found to be compliant with safety protocols. The measure offers no immunity if a court finds that a resident contracted the virus because of gross negligence or “willful, wanton or reckless conduct” by the nursing home.

“I wanted to make sure that our nursing homes, our elder care facilities knew that they were going to be taken care of as well,” said state Rep. Stephen Owens, R-Hesston. “It was very much a priority for me.”

Six Republican lawmakers have signed on as sponsors, also including Paul Waggoner, Chris Croft, Megan Lynn and Adam Thomas. No Democrats are sponsors so far. The bill will likely be heard by the judiciary committee next week.

Hospitals and some other health care providers have immunity from pandemic-related lawsuits under a bill passed during a June 2020 special session. It was part of a deal struck by Democratic Gov. Laura Kelly and top Republicans that also limited the governor’s executive authority during the pandemic. At the time, Republican leadership believed Kelly would veto the bill if it included immunity for nursing homes.

Republicans fear liability would hurt rural facilities in particular, as legal costs would strain finances regardless of a lawsuit’s outcome. But for those with family members who died from the coronavirus in Kansas nursing homes, the bill could take away their right to a jury trial, Kansas City attorney Rachel Stahle said.

Stahle, who represents seven families who lost loved ones at Riverbend rehabilitation and nursing home in Kansas City, Kansas, said the bill’s language is too broad and could take away what she believes is the only way to hold nursing homes accountable — the court system.

“It’s frankly abhorrent,” she said.

Last spring, as the pandemic took hold, at least 36 died and 132 staff and residents tested positive for COVID-19, making it one of the worst clusters in the state at the time. Representatives from Riverbend did not return requests for comment.

Owens said he believes the bill will receive bipartisan support to give nursing homes the same protections as hospitals and other health care providers.

But John Carmichael, a Democrat from Wichita and ranking minority member of the Judiciary Committee, said he will not support the bill, or any “special favors,” regardless of the industry.

Carmichael, an attorney, said such lawsuits against nursing homes would most likely be unsuccessful. Because the virus can be contracted anywhere, he said, it would be hard to argue that an individual or company is responsible unless gross negligence was involved.

“I think all of this is part of a larger strategy to try to keep businesses in particular from being responsible for the consequences of their actions,” he said.

This story was originally published January 6, 2021 at 5:12 PM.