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Long-term-care facilities are using the pandemic as a shield, even in lawsuits unrelated to covid-19

North Carolina’s broadly worded emergency liability exemptions are being tested in negligence lawsuits

Greg and Amanda Garrett sit in their home in Wilmington, North Carolina on Aug. 6, 2021. (Madeline Gray for The Washington Post)

Amanda Garrett recalls her first thought upon learning her father-in-law was violently attacked: “That doesn’t make any sense at all.” Garland Garrett Jr., 80, a former North Carolina state transportation secretary and onetime political figure in Wilmington, was an ailing man with dementia, known as “The Mayor” among staff in the secure memory unit of a local assisted-living facility.

Garrett died on Sept. 12, 2020, from what the county medical examiner ruled to be blunt force trauma, including two fractures to his neck. Another resident with dementia and a history of violent outbursts aimed at staff and other residents assaulted Garrett early in the morning six days earlier, while Garrett lay in his bed, according to court records. A joint inspection by state and county licensing authorities cited the assisted-living facility, Spring Arbor of Wilmington, with the state’s highest level violation for failing to properly supervise care.

But after the Garrett family filed a lawsuit in a bid to hold Spring Arbor accountable, the facility contended in a court filing that it is exempt from legal liability under a temporary North Carolina pandemic immunity law for health providers passed by the state legislature last year.

The state adopted the broadly worded provision in May 2020 to protect companies and staff from malpractice and negligence lawsuits arising during the pandemic. The provision will stay in effect as long as Democratic Gov. Roy Cooper’s emergency declaration over the health crisis remains in place. In court documents, Spring Arbor contends the covid emergency law immunizes it from responsibility for Garrett’s death, even though it was a violent attack that killed him, not the coronavirus.

The inspection by the state Adult Care Licensure Section and New Hanover County listed multiple examples in prior months of the man who assaulted Garrett physically attacking people, roaming naked outside his room, and urinating on the floor. (The assailant, whom the district attorney opted not to criminally charge because of his dementia, has since died.)

“In this case, covid had nothing to do with what happened,” said Greg Garrett, a Wilmington dentist and son of Garland Garrett. “All the warnings were ignored. This was negligence, pure and simple. Why would you get a free pass for being negligent?” He called the facility’s legal tactic a “cop-out.”

Spring Arbor of Wilmington is owned and operated by affiliates of a real estate development company, Virginia-based HHHunt, and its related firm, Spring Arbor Senior Living; Spring Arbor’s website says it operates 24 assisted-living centers in Maryland, Virginia and North Carolina. The company did not respond to repeated requests for comment. In court documents, in addition to asserting immunity from liability under the pandemic emergency law, it has denied all of the allegations that it failed to properly care for Garland Garrett.

Thirty-eight states have enacted emergency orders or laws intended to immunize companies and individuals for care related to the pandemic, according to a tally compiled by National Consumer Voice, a nonprofit watchdog organization focused on nursing homes. The public conversation in most of the states was that hospitals, doctors, and long-term-care facilities should not be held legally responsible for coronavirus infections and deaths in a viral pandemic that overwhelmed medical systems and long-term-care centers.

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In nursing homes and assisted-living facilities, at least 185,000 people have died of covid-19, according to the nonprofit, nonpartisan Kaiser Family Foundation. The Washington Post in June 2020 published an investigation that showed how the industry had lobbied heavily for immunity laws as the infection and death toll mounted in the early weeks of the pandemic.

What’s new in North Carolina is that it’s the first state where immunity claims are being cited in court by facilities to defend themselves against cases that are not related to covid-19 and treatment.

Such arguments could be more common. Just three of the 38 states with pandemic immunity laws specifically restrict the protections to coronavirus exposure or infection, according to the survey by National Consumer Voice.

The rest of the states have broader language that could cover most forms of harm experienced by patients and residents during the pandemic, according to the organization. North Carolina’s law says immunity applies to the delivery of care “directly or indirectly” impacted by the pandemic. Most of the states have exceptions for acts of “gross negligence” or those in a lack of good faith, higher standards than the usual negligence allegations that are found in nursing home lawsuits over issues like bed sores, falls, dehydration, choking, undiagnosed or untreated infections, and medication errors.

North Carolina’s law was passed unanimously and signed by Cooper in May 2020 as part of a $1.6 billion state pandemic aid package. It is producing the first closely watched court battles in the nation over these provider protections. The Garrett case, brought by Wilmington lawyer Joel Rhine, is one of three in the state’s courts.

In a 2020 case, a dying woman allegedly suffered needlessly in hospice at Brighton Gardens of Charlotte on Sept. 4 and 5, fully alert and panicked as she drowned in her own lung secretions. The family’s lawsuit contends she was not given narcotics and other medications to keep her comfortable in her last hours.

Brighton Gardens is part of the large national long-term-care chain Sunrise Senior Living. Brighton Gardens has denied the allegations in court documents and has said the case is covered by the state’s immunity law.

A Sunrise representative declined to comment on specific allegations, citing privacy of its residents and families. “We continue to work every day to earn their confidence and trust and take any concerns regarding the care and safety of our residents very seriously,” the company said in an email to The Post.

Separately, in what was apparently the first such case to land in North Carolina courts, the Treyburn Rehabilitation Center in Durham declined to send a patient with an infected pressure ulcer to the hospital in April 2020, despite multiple requests to do so from her family, according to the family’s lawsuit. The woman later died. The case was dismissed by a judge who sided with Treyburn’s arguments, which included assertions of broad pandemic immunity. The family is appealing.

Treyburn is operated by a Florida-based chain, Southern HealthCare Management. A lawyer for Treyburn did not respond to a request for comment. Messages left at Southern HealthCare were not returned. In court documents, the company has denied the allegations of negligent care.

The North Carolina trade associations representing the state’s nursing homes and assisted-living centers did not respond to requests for comment.

The national organization representing and lobbying for the long-term-care industry, the American Health Care Association/National Center for Assisted Living, did not specifically address whether it is appropriate to apply pandemic immunity laws to non-covid care. But it said state immunity laws have provided crucial protections for providers who were struggling to keep long-term-care residents safe during the pandemic.

“An unprecedented, global pandemic compelled our health care heroes to risk their own lives to care for and protect our nation’s most frail and vulnerable,” the organization said. “It is absolutely vital to have protection from excessive lawsuits when staff were making good faith efforts. … These calls for legal protections are not unique to long term care and are considered necessary by many in the entire health care sector and the business community.”

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Cooper’s office insisted the North Carolina law does have limitations. “The law recognizes that the pandemic is difficult for medical providers and that they should be afforded some protection, however the law was not intended to give blanket immunity to those who should be held accountable to their patients,” said Cooper spokeswoman Mary Scott Winstead.

But advocates for residents and their families say these laws have gone too far. They contend the industry sought broadly worded immunity laws, as the families — who often serve as the eyes and ears for problems when they visit their loved ones inside residences — were no longer permitted inside facilities. Without those family members drawing attention to issues on a frequent basis,an escalation in routine neglect cases was bound to happen, said Sam Brooks, program and policy manager for National Consumer Voice, who has been closely monitoring the spread of immunity laws.

“For years, facilities have relied on families to provide care so they can short-staff their facilities,” Brooks said. As visitors have been allowed to return to facilities this year after successful vaccination campaigns, he said, families are finding their loved ones have suffered during lockdowns.

Staffing levels in long-term-care facilities have been a battleground for years. North Carolina’s pandemic immunity law blocked plaintiffs from arguing that low staff levels were a root cause of negligence. That removed a common argument plaintiff attorneys typically use in nursing home negligence cases.

“In nursing home litigation, you almost always find the reason bad things happen in nursing homes is because these facilities are understaffed,” said Carma Henson, a North Carolina trial attorney who is not involved in any of the three cases currently being argued in the state’s courts. The state’s pandemic immunity law, she said, has essentially given long-term-care facilities “permission to understaff” during the covid emergency.

Elizabeth Todd, the lawyer for families in the cases against Brighton Gardens in Charlotte and Treyburn Rehabilitation in Durham, said she has dozens of potential cases unrelated to coronavirus infections that she’s reluctant to file because the immunity law increases the likelihood of failure.

Todd’s first case brought during the pandemic was dismissed by a North Carolina judge in February of this year at the end of a hearing where both sides argued their case. Palestine Howze, who did not have the coronavirus, was a resident of Treyburn Rehabilitation. She died at Treyburn in April 2020 from complications over what her family alleges was an infection from a golf-ball size pressure ulcer. The staff refused to send Howze to an emergency room to treat the infection despite pleas by her daughter, according to court filings by the family.

A lawyer for Treyburn, Christopher Smith, argued during the hearing that North Carolina’s immunity law protected Treyburn’s actions. The risk to Howze of contracting the coronavirus at a hospital could have been significant, he added. Citing unanimous votes in both the state House and Senate to authorize the immunity law as part of a broader package of relief, Smith said the legislature provided broad immunity “to address the issue of how do we protect our health care heroes when we need them the most, which is right now during the plague.”

Todd argued in court that immunity should not apply because of Treyburn’s record of state citations for health and safety violations and the refusals by Treyburn to transport Howze to an emergency room.

“The plain language of the statute … and common sense tells us that the General Assembly did not intend to give wholesale immunity to providers like Treyburn,” she said at the hearing. The judge sided with Smith and Treyburn with little comment. Todd said no state or county inspection was performed in the wake of Howze’s death.

Todd has since brought a second case, filed in April of this year, alleging that Brighton Gardens of Charlotte failed to provide care in good faith because staff did not provide crucial medications to Julia Quirindongo, who was in hospice at the facility as she died of congestive heart failure.

Quirindongo had lived overseas for decades as she followed her husband around the world for his job working for IBM. After his death in Florida, her health declined. In Charlotte, where her family moved her to be near her son, she was supposed to receive medicine to reduce fluid buildup in her lungs as well as hydromorphone, an opiate, for pain relief and to treat difficult or labored breathing. But her family’s lawsuit said she did not receive those drugs in the hours before her death. She suffered greatly, panicking and attracting attention from other residents with her moans, as her children sat by helplessly, calling for help from staff and from an outside hospice nurse in the middle of the night, according to the complaint.

“She was promised an easy transition, and something that would let her peacefully drift into death, and instead she literally drowned in her bed because she wasn’t given medication she was supposed to be given. They just didn’t give it to her,” Todd said in an interview. A Mecklenburg county inspection report cited Brighton Gardens in the case with the highest level violation for failing to administer prescribed medications. The inspection report also found two other residents at the facility had not been given prescribed medications.

Sunrise Senior Living, the chain that Brighton Gardens is part of, did not respond to requests for comment. The inspection report quoted an administrator as saying Quirindongo’s family members refused a medication aide’s offer to administer hydromorphone, an allegation that the two children strongly denied in an interview with The Post. They said they repeatedly requested medications for their mother in her final hours. They expressed outrage that Brighton Gardens and Sunrise cited the state’s pandemic immunity law as a defense in court documents.

“This certainly isn’t the intent of why they put this legislation in place,” said Ronnie Talent, Quirindongo’s son. “They are trying to somehow use it as an excuse why they can be negligent.”

Amanda and Greg Garrett say Spring Arbor of Wilmington’s ban on visitors blinded them to the potential violent threat in the facility where Garland Garrett lived last year.

Garland Garrett was a Democratic fundraiser and former North Carolina secretary of transportation and member of the state transportation board. He played a role in major highway development in the state throughout the late 1980s and 1990s. On Friday mornings he visited a local restaurant, Whitey’s, where he joined the breakfast political debates with gusto, his family said.

“I was always amazed at the people he knew,” Greg Garrett said. “If we went to lunch somewhere, or a restaurant, people would know him and recognize him. I couldn’t go anywhere without someone walking up to him and talking to him.”

Garland Garrett also was involved in the family video game and vending machine business, Cape Fear Music Co., which his father founded in 1950 as a jukebox company. The enterprise was at the center of an alleged illegal video poker machine business from 1988 to 2000, according to a federal indictment. After an investigation by the FBI and state authorities, Garland Garrett pleaded guilty in 2002 to federal charges of participating in an illegal gambling business and later received a five-month prison sentence.

Garland Garrett Jr.'s mental faculties began to decline in recent years, his family members said in an interview. Inexplicably, he began to order vast quantities of vitamins, more than he could ever take. He began to get confused during walks.

“One day we got a call, and they said, ‘We have your dad here, and he doesn’t know how to get back home,’“ Amanda Garrett said. She said she found Spring Arbor of Wilmington in 2017 and it seemed “perfect for him.”

But once the pandemic began in March 2020, family members were no longer allowed in to the facility to visit. Amanda Garrett said she would bring supplies requested by the staff and leave them in the entryway.

“We had no reason to think that anything was going on,” Greg Garrett said. “If it weren’t for the staff, we wouldn’t know anything about what went on.” The family’s lawsuit against Spring Arbor recites 27 documented incidents of aggressive action against people or property by Garland Garrett’s attacker, as well as warnings from staff that stronger interventions were required.

In February of 2020, a report said the resident was banging and kicking doors of the memory unit and was “very agitated.” Additionally, in multiple incidents over a few days in June, the resident hit a staff member on the shoulder, was found sleeping in another resident’s room, threw a sandwich at another resident, hit a staff member in the back and chest, attacked two employees and another resident, the report said.

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On July 14, he pushed a sofa into another resident, charged a medication aide and “grabbed a wheelchair and tried to chase others,” according to the report. Staff members told inspectors they had discussed how to handle the resident’s increasingly agitated and violent behavior with Spring Arbor managers, and they said they were told to document each incident as part of a review to have him moved.

At about 6 a.m. on Sept. 6, staff members heard Garland Garrett screaming from his bedroom.

“Get him away from me, help me,” he yelled, according to a staff member who spoke to inspectors after the incident. A care aide wiped blood from his eyes and propped him up so he wouldn’t choke. “Get him out of here, don’t let him in,” Garrett told staff, according to the report. The other resident was seen in a bathroom the two men shared between their rooms, with blood on his hands and arms, the report said.

Garrett’s family received a call from a neurosurgeon at a Wilmington hospital who said the two fractured vertebrae — which were injured during the attack — in his neck were inoperable. Amanda and Greg found him wearing a neck brace when they visited. He did not understand why he had to have the brace, Greg Garrett said.

“It was driving him to the brink, and he was trying to get it off. I had to keep explaining to him why,” Greg Garrett said. “That’s what his last few days were like, just trying to get that thing off him, and when he did grab a hold of it, it would hurt him. It was hard to watch.”

Amanda Garrett said she was racked with guilt after the incident, because she had been the one who found Spring Arbor of Wilmington for her father-in-law.

“It made me angry — very, very angry,” Amanda Garrett said, “that nobody even hinted that this guy was walking around in there.”