The problem with Pritzker's pandemic immunity orders | Feature | Chicago Reader

The problem with Pritzker's pandemic immunity orders 

In the early days of the crisis, the governor granted Illinois nursing homes and hospitals civil immunity for most malpractice, even for deaths that have nothing to do with the coronavirus.

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UNSPLASH / JC GELLIDON
  • Unsplash / JC Gellidon

On the afternoon of the April 1 pandemic press conference, Governor J.B. Pritzker said, "We're doing our best to take care of our seniors, our children, people who are in our care. Our number one concern is the welfare of the people who are in our care." Later that same day, Pritzker quietly issued an emergency order granting Illinois nursing homes and hospitals a broad swath of legal immunities for injuries or deaths from negligence. The AARP-IL, disability rights activists, attorneys, experts, and a Department on Aging official believe the immunities from litigation will harm Illinoisans, especially those in long-term care.

Pritzker's little-known Emergency Order 2020-19, as amended, states that Illinois's hospitals, nursing homes, assisted living facilities, developmental disability facilities, and mental health centers "shall be immune from civil liability for any injury or death alleged to have been caused by any act or omission" by these facilities, even if the treatment was not for COVID-19, as long as the injuries or deaths occurred when the facilities were "providing health care services in response to the COVID-19 outbreak."

Kelly Richards, Illinois's long-term care ombudsman, stated in an e-mail to me that as the official "charged with working to protect the health, safety, welfare, and rights of residents under the Older Americans Act, I do not support the immunities provided by Gov. J.B. Pritzker's Emergency Orders 2020-19 and 2020-37," a modification of 2020-19. EO 2020-37, issued on May 13, drops an April 30 requirement for hospitals to accept COVID patients, immunizes against liability for negligence in COVID transmission during elective surgery or procedures, and requires facilities to adhere to Illinois Department of Public Health guidance. The order expires on June 27 but may be renewed.

Richards's agency was among the approximately 250 signatories of a May 28 letter to Senator Mitch McConnell and Senator Chuck Schumer urging them not to introduce federal legislation with immunities for nursing homes similar to those now in place in Illinois. The letter states: "Stripping residents of their right to hold nursing homes accountable for substandard care will put more residents at risk and inevitably result in increased resident deaths."

Law school professors Nina Kohn and Jessica Roberts have published criticisms of similar orders in other states. They say the Illinois order's breadth is unusual, unnecessary, and likely harmful. After reviewing EO 2020-19, Kohn, David M. Levy Professor of Law at Syracuse University College of Law, said, "Granting long-term care facilities immunity from negligence claims is not something you would do if you truly care about residents of long-term care facilities."

Under EO 2020-19, private hospitals and nursing homes only lose immunity if the person injured or relative of someone who has died can prove "willful misconduct." Government-run health facilities lose immunity if the injuries or death were due to either "gross negligence" or "willful misconduct," standards lifted from the law providing emergency powers to the governor. Instead of an EO letting nursing homes off the hook, the AARP-IL urged Pritzker to issue an order "deploying the National Guard if a nursing home is unable to achieve the State's nursing home minimum staffing law requirements."

Chicago attorney Terry Nofsinger, who represents plaintiffs in medical malpractice cases, explains the normal negligence standard this way: "If you're driving and the car ahead of you stops because of a stop sign and you rear-end that person for whatever reason, you're negligent. A reasonably careful person would not have done that."

In hospitals and nursing homes "reasonable" typically means following normal standards of care, Kohn explained. "Most negligence isn't gross negligence. Now the plaintiff needs to plead a heightened level of culpability." The legalese has life-and-death implications. Just as "qualified immunity" for police in most contexts gives permission for their unreasonable use of deadly force, experts and attorneys believe Pritzker's EOs immunizing negligent health-care facilities are contributing to the staggering coronavirus death rates in our assisted living facilities and nursing homes, accounting for almost 50 percent of all COVID-19 deaths in Illinois as of late May.

On April 23, Faith Heimbrodt, 49, decided she just had to see her mother, even though the Bria nursing home in Geneva had been prohibiting visits due to COVID-19. "An alarm bell went off," Heimbrodt said. "I had FaceTimed with her earlier in the day. I saw how bad she was."

In the two years since her 79-year-old mother, Carol Orlando, had moved into the nursing home a 40-minute drive from Heimbrodt's home in Huntley, she became resigned to her mother's thick, curled toenails the nurses were too busy to cut. Carol's inability to hear Heimbrodt, due to the staff losing track of her mother's hearing aids, also was in the distant past. And Heimbrodt had come to terms with her mother's immobility. "My mom was a walker, five miles a day."

Carol used to work at Chicago's Playboy Club and Como Inn. "She loved to walk," Heimbrodt said. Carol arrived at Bria with what Heimbrodt said were short-term memory problems. But by March 2018, after a few months at the for-profit Bria facility, her mother could no longer stand up or use a toilet. "She was just a body in a chair," Heimbrodt said. Her choices were limited. Few nursing homes accept Medicaid for dementia units.

The "alarm bell" in April 2020 was the FaceTime video from the nurse's cell phone. "I could see her breathing was shallow," Heimbrodt told me. She texted the nurse, "I need to see my mother, please. I have protection."

A few hours later, Heimbrodt donned gloves, a respirator, and a hazmat suit and entered the facility. The residents she and her children used to greet with hugs and good cheer in previous visits were gone, though the floor still seemed fully occupied with about two dozen residents. Two were in a heated argument over pants. Her mom's blind roommate also had disappeared. "There was a new woman, with a neck brace," Heimbrodt said. The nurses' station and dining hall areas for the employees were vacant. "I never saw staff until I was leaving. He was trying to tell the two [fighting] residents to go back to their rooms." She said no one, including the nurse, was wearing a mask.

Heimbrodt sat next to her mother for two hours. She saw the shallow breathing and even through her face mask noticed sores on the side of her mother's mouth, suggesting dehydration. The next day Heimbrodt called and was told liquids would pool in Carol's lungs and had been withheld. "I asked, 'When was the last time you gave my mom water?' They could not answer that."

The facility refused to hook up Carol to an IV, but assured Heimbrodt someone would squeeze water into Carol's mouth from a sponge. Carol had a do-not-resuscitate order. "I wasn't looking for a ventilator," Heimbrodt said. "I was asking for humane treatment. When someone is dehydrated, you give them fluids. How many days can you live without water? Three?"

The next day, April 24, Faith heard from the facility about the results from their first COVID-19 tests: 19 residents and 24 staff had infections. According to the Geneva Bria Health Services administrator, Patti Long, Carol had not been tested because she lacked COVID-19 symptoms. On April 25, while Heimbrodt was on the phone with a hospice nurse procured from an outside agency, another nurse walked in. "She died," Heimbrodt heard the nurse say. Long did not respond to e-mailed questions about Heimbrodt's account.

On June 5, Heimbrodt's attorney Margaret Battersby Black filed a lawsuit alleging that "Carol's symptoms of COVID-19 in early April fell on the deaf ears of a nursing home corporation that put profits over the health and safety of its residents and staff." The complaint notes, "As of May 29, 2020, there have been 132 confirmed positive COVID-19 cases at Bria Health Services of Geneva, and 26 people have died," it says, "including Carol." It was Black's third COVID-related nursing home complaint since June 2.

Typically Black alerts facilities of potential litigation to invite a settlement. Now, she isn't bothering. Defense attorneys "hiding behind immunities are starting closer to the finish line" and will go to court, Black said.

Black and other Chicago plaintiff lawyers interviewed for this story predict facilities like Bria will lose. If a trial court finds the EO immunizes Bria, Black said she will appeal the order's constitutionality. Nofsinger said the consensus of his colleagues was that the order was "far too broad" and wasn't the sort of order the governor could make "unilaterally without the legislature." But even if their clients win, it's too late for Carol Orlando and countless others. "The deterrence value from the threat of litigation is part of what you're losing [due to the EO], even if at the end of the day certain cases are viable in court," Kohn explained.

One reason facilities like Bria might have thought they were immune from accountability is that they helped write EO 2020-19. Dozens of e-mails released following a request under the Illinois FOIA law (147, 156) reveal Pritzker turning his office over to the CEOs and lobbyists of hospitals, nursing homes, insurance firms, and their attorneys, a pattern similar to what happened in New York, Georgia, and over a dozen other states.

In an e-mail to Pritzker's deputy chief of staff for external affairs Sean Rapelyea and general counsel Ann Spillane, Bria's CEO Dan Weiss wrote, "As a follow up to the conversation Sean and I had around liability issues nursing homes are facing right now, I wanted to send you some language we would like to submit for your review." His e-mail implied Bria facilities would refuse readmittance of their own residents following hospital COVID care unless "litigation relief" were ordered. According to data Bria reported to the IDPH, the Geneva COVID cases all were contracted after April 1. In response to a request for comment on the care provided Carol Orlando, the lawsuit, and the e-mail, Bria Health Services spokesperson Natalie Bauer Luce stated, "We mourn the loss of Mrs. Orlando and we share the anguish her loved ones must be feeling. Lawsuits like these, however, send a dangerous message to patients, families and the health care heroes fighting on the frontlines that their efforts to save lives will be used against them by personal injury lawyers who seek to profit by taking advantage of the global pandemic. The immunity protections afforded to all health care providers set by Gov. Pritzker's executive order are necessary to ensure practitioners can focus on what matters most—saving lives and stopping the spread of this horrific disease."

Rush University Medical Center general counsel Carl Bergetz played a key role in initiating the immunities. He also received an invitation to edit the EO the morning of its release. "As discussed, attached is the draft EO re: liability. We are still working to finalize this language but would welcome any feedback from you," wrote Pritzker's deputy general counsel and chief compliance officer Juliet Berger-White. Bergetz did not respond to a request for his interpretation of the scope of EO 2020-19.

On the morning of April 1, Berger-White also sought input from other hospital defense attorneys, including Dina Torrisi Martin, a prominent hospital defense malpractice attorney at Hughes Socol Piers Resnick Dym, the firm where Berger-White worked from 2001 until she joined Pritzker's staff in 2018. Berger-White received Martin's reply at 11:31 AM with an invitation to "call me with questions re: my comments." Fifteen minutes later, Berger-White sent an e-mail to a colleague in the governor's office also working on the EO: "Here is the most recent draft." There are no e-mails to plaintiff attorneys or patient rights groups.

Mike Ervin is a spokesperson for ADAPT's Chicago chapter and married to Rahnee Patrick, appointed by Pritzker as director of the Department of Rehabilitation Services. "I heard about efforts in other states," Ervin said, "but hadn't heard about it in Illinois." He added that the Pritzker administration has been "pretty good to the disability community." But Ervin found the order disturbing. "If there had been any inkling we would have responded very robustly and loudly." The real problem, Ervin said, is that corporations have "commodified disabled people" and produced the congregate care dangers ADAPT has been protesting for decades.

"Their response to a terrible problem where they have people trapped in these facilities is to think about nothing but protecting their money. If people at the state and federal level listened to us 20 or 30 years ago then we wouldn't have this problem now," Ervin said, noting that Illinois Dems were slow-walking closing down the state's own long-term care facilities because of labor union pressure.

Amber Smock, director of advocacy for Access Living, said, "Given that many facilities covered by the order had safety violations prior to the pandemic, it seems odd to provide immunity to medical providers. It was predictable that facilities with poor records would see heightened numbers of infections and deaths." The attorneys and experts I interviewed said they were sympathetic to the new challenges posed to health-care providers, but explained that current negligence standards already require judges and juries to consider actions undertaken against the backdrop of a pandemic when deciding on what counts as reasonable care.

Attorneys I interviewed were uncertain about whether they would take on, say, a Legionnaires' disease case if the outbreak happened in the timeframe of EO 2020-19. Nofsinger thought he probably would if the injury was severe and permanent or fatal and had nothing to do with COVID. The decision would be a tougher call now, in part because the terminology in the EOs differs from the terms of art used in most civil litigation in Illinois. "I have not encountered the term 'gross negligence' used in an Illinois case," Nofsinger stated. He looked up jury instructions for "gross negligence" and confirmed none existed. Experienced medical malpractice defense attorney Tammy Wade said she also was unable to define conduct that fit these terms. "This is uncharted territory for all of us," she said.

Steve Levin, a named partner in the same firm as Black, pioneered suing nursing homes under a previously unused Illinois law. The broad language of the orders reflects "poor drafting." Levin said, "I don't think the intent was that if in some other section of the hospital someone misses a finding on a scan we are going to move this into wanton and willful misconduct because the hospital is treating COVID patients." Nofsinger also said that he did not believe the order was meant to cover non-COVID mishaps. Plaintiff attorneys I interviewed were hopeful judges would share their view that the order is ambiguous and rule based on what the lawyers believed to be the governor's intent to cover only COVID patients, and not the order's capacious language that provides immunities for negligence leading to non-COVID injuries and deaths.

An official on the governor's staff familiar with the order's drafting, interviewed after I spoke with the lawyers, said that Pritzker did indeed intend to give health providers immunities for certain non-COVID mishaps. The official, who requested anonymity, said the goal was to give hospitals providing treatment that injured or killed a non-COVID patient a defense for injuries or deaths caused by the redistribution of staff and resources to provide the state assistance with COVID care. "If we the hospital are overrun by COVID cases," the official said, "and as a result the nurse who normally provides X, Y, Z treatment is on her 18th hour of her shift, we would normally never have her work that long; we would normally never have her providing COVID care, but she is. And when she shifts over to provide non-COVID care she doesn't get everything right because she is exhausted and the normal team she would have around her is not there because they are off handling COVID care. This is written that way so a court would take that into consideration."

In other words, if someone dies because a CT scan for a brain tumor is improperly performed or analyzed in a hospital that claims COVID-related stress or stretched resources from providing COVID care, the orders promise the hospital a possible get-out-of-accountability card.

Roberts, Leonard H. Childs Chair in Law and professor of medicine at the University of Houston Law Center, points out that other states providing immunities did so much more sparingly. "Pennsylvania says immunity does not extend to professionals providing non-COVID care," she said, a specific restriction that would prohibit the immunities Pritzker is providing to hospitals in Illinois.

Asked whether Pennsylvanians would suffer because of the narrow immunities their governor afforded hospitals, the official said, "We took an approach we felt was justified based on the facts and circumstances on the ground in Illinois." The official declined to explain how those drafting the EOs understood the meaning of "gross negligence" and "willful misconduct."

Along with the long-term care ombudsman, patient rights advocates, and the disability community, the Illinois Trial Lawyers Association also was not consulted about EO 2020-19, according to Antonio Romanucci, ITLA's president until June 5. ITLA, an association of plaintiff attorneys, avers they "secure and protect the rights of those injured in their persons or civil rights." A Chicago attorney familiar with the ITLA leadership and Pritzker's office told me, "If Romanucci wasn't consulted, no one was."

Spillane, who said she supervised the EO's drafting, stated she did in fact have "conversations with the plaintiff's bar" by phone, but confirmed not speaking with Romanucci and said that the EO was "not written the way the plaintiff's bar would have written it." She declined to name any of the attorneys with whom she spoke. When asked if she could document phone calls not referenced in her e-mails she mentioned "loads of notes," but would not share them with me.

My FOIA request covered "notes." An inquiry of the FOIA officer about these notes following the interview has not been answered. Spillane supervises the FOIA office. An additional 900 e-mails await release to me. I will be appealing unjustified redactions and withholdings in the first two releases.

Among the surprises in releases to date: A March 22 e-mail from Michael Scodro, former Illinois solicitor general (2007-2014), about a colleague with “a contact in China who has some connection to companies in China that may have excess capacity for medical masks." In an e-mail sent to me after the publication of this story, Mayer Brown spokesperson John Tuerck stated that the March 22 e-mail elicited no response from the procurement office. On March 25, Scodro, now an attorney at Mayer Brown LLP, wrote to Berger-White, "I've attached a draft pro bono agreement." Tuerck also told me after publication that Mayer Brown has no knowledge of who was involved with the mask shipments, and that the engagement letter attached to an e-mail, under the subject-heading "Re: Masks," "has nothing to do with the procurement of masks." Jordan Abudayyeh, Press Secretary for Governor Pritzker, affirmed Mayer Brown’s claims after the original publication of this story. Scodro did not respond to a prepublication request for comment or a request for a copy of the agreement. Tuerck and Abudayyeh rebuffed requests for the agreement, the State’s withholding of which I will be appealing, along with numerous other unjustified withholdings and redactions.*

Romanucci said that he thought the orders were meant to support an effective medical response to COVID. "We support the Governor and his attempt to protect first responders," Romanucci said. When asked about the breadth of 2020-19 and 2020-37, and unaware of the statement of Pritzker's intent shared with me later, Romanucci referenced the haste in which the orders were written and said, "ITLA interprets the orders more narrowly than others. It would be inconsistent with the intent of the act to immunize a doctor or hospital for a labor or delivery when there is no COVID-19 associated with the labor or delivery. That's my statement on how we are interpreting these orders."

Romanucci said he was not bothered by being excluded from discussions of the EOs. After being informed that e-mails reflected correspondence exclusively with hospital and defense attorneys, Romanucci said, "If the governor's office felt it appropriate to talk to them and not the plaintiff side I'm going to respect what the governor thought was best for the state. I hope if there's any amendment to the EO that we be included also." Several attorneys spoke to me off the record, on background, or declined a request for an interview because of fears of crossing ITLA. "They don't like outliers," one said.

Defense and plaintiff attorneys agree that hospitals will attempt the broadest reading possible. Roberts, after reviewing the Illinois official's scenario of the overworked nurse, said, "It seems relatively clear that if they were pulling doctors out of labor and delivery to treat COVID patients, the order would extend to labor and delivery," adding that the text of the EO goes well beyond the scenario the official described. "The EO is over-inclusive. It would cover cases where not only does it not have anything to do with COVID, it also doesn't have to do with resource allocation because of COVID, just a hospital employee acting negligently." Pointing to the North Carolina statute as an example, Roberts said, "They could have drafted the EO to target negligence that is a result of lack of resources or understaffing without covering negligence that is unrelated to the pandemic or any resource shortages."

Kohn is worried. "The linkage between the COVID disaster and immunity is weak here," she said. "We're not just talking about protecting facilities from those difficult ethical decisions amid a crush of COVID patients competing for ventilators. This goes well beyond that situation to really put any patient in any facility in harm's way by essentially saying you don't have to act reasonably to your patients during this period in history."

Valerie Gutmann Koch, a faculty fellow at DePaul College of Law, favors special immunities for hospitals under pressure when allocating ventilators or other resources between COVID and non-COVID patients. Koch also agreed with other attorneys that the normal negligence standard allows for a defense against bona fide COVID-19 related mishaps. "The standard of care is going to change in a pandemic. It just has to." Koch supports certain pandemic related immunities because of the "peace of mind" they provide during a pandemic, but said EO 2020-19 was "overly broad" and thought EO 2020-37 an improvement. "I am willing to go to bat to protect facilities that follow modified standards of care in a pandemic, but not the nursing homes that are well known for abuse and neglect."

The interests behind EO 2020-19 have PACs that contribute to Dem politicians and their leadership funds, including the Illinois Council on Longterm Care, the Illinois Health Care Association, and ISMIE, a major malpractice insurance company, via the Illinois State Medical Society PAC. Other insider influence is closer to home. The governor's wife, Mary Kathryn Pritzker, has served as a trustee for Northwestern Memorial Healthcare Group, whose CEO Dean Harrison has leadership roles in major hospital associations that lobbied Pritzker for the immunities.

Nursing homes are not the only players with troubling safety records predating COVID. Chicago hospitals that advertise stellar reputational rankings receive middling or poor grades on safety from Leapfrog, a nonprofit watchdog organization that relies on independent experts for a formula that weights 28 measures of patient safety. (Northwestern and Rush University Medical Center earned Bs.) And 20 of the 45 hospitals within 25 miles of Streeterville received just one or two of a possible five stars in the federal government's reports assessing dozens of factors from health-care associated infections to over-billing. The emergency orders are "particularly problematic because they reward bad actors," Roberts said. "If you're willing to cut corners to turn a profit, the immunity orders insulate you from liability and reward you for negligent conduct," she explained.

Levin expressed a concern that corporate interests across the country were using the emergency orders to smuggle in permanent changes to nursing home accountability. Roberts also is worried. "We are normalizing certain things that might stick with us beyond the pandemic. That would be troublesome."   v

Jacqueline Stevens is a political science professor at Northwestern University.

*Editor's Note: A paragraph on the FOIA withholdings and shipments of masks from China has been updated to include recent disavowals, by State and Mayer Brown spokespeople, of any involvement with PPE shipments by Mayer Brown attorneys.

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