A state COVID-19 immunity shield law for assisted living and other providers has been ruled unconstitutional, which could have major implications for long-term care and other healthcare providers in Arizona.
The Arizona Court of Appeals ruled recently that a 2021 law shielding the providers from COVID liability claims violated a provision in the state constitution that prohibits lawmakers from revoking citizen’s right to recover damages for injuries. The case was remanded to a lower court.
“This is greatly concerning to the providers in Arizona, as it could impact all assisted living and skilled nursing facilities in the state,” Arizona Health Care Association CEO David Voepel told McKnight’s Senior Living. “We are watching it very closely, especially if it makes its way up to the Supreme Court.”
Voepel added that Arizona has a statute of limitations on claims, adding a further complication to the ruling and its potential effects on the senior living and care industry.
The case arose after Robin Roebuck filed a medical negligence suit against the Mayo Clinic in Arizona in January 2021 after having an adverse side effect from a test that was administered to evaluate and treat COVID-19.
Roebuck, who previously had undergone a heart transplant, had been hospitalized with COVID-19 in April 2020. After an echocardiogram ruled out any heart-related concerns, doctors ordered an arterial blood gas test to measure his oxygen levels. The test showed that Roebuck had very low oxygen blood levels, warranting monoclonal antibody treatment.
The next day, Roebuck developed complications from the test and underwent emergency surgery that left him with diminished strength and the use of his right hand and arm, as well as significant scarring.
The case originally was thrown out based on the 2021 law, which was retroactive to March 11, 2009, when then-Gov. Doug Ducey (R) declared a state of emergency due to the pandemic. The law covered providers through March 30, 2022, when the public emergency in the state was lifted.
The Mayo Clinic was granted summary judgment by the Superior Court, which Roebuck appealed. The appellate court reversed the finding of summary judgment and remanded the case to the Superior Court.
The law in question shielded providers from ordinary negligence claims relating to the pandemic-related medical treatment they provided. It also required claims to show “clear and convincing evidence” that a provider acted with “willful misconduct or gross negligence.”
The court noted the statute did not merely raise the burden of proof for medical malpractice claims; it barred all claims for ordinary negligence arising out of COVID-related medical treatment, a violation of the Arizona constitution. The court found that the legislature left “no reasonable alternatives or choices” for bringing negligence claims against providers.
The decision also addressed the Mayo Clinic’s claims that the lawsuit was barred by the Public Readiness and Emergency Preparedness Act, or PREP, Act, a federal statute providing immunity to covered persons engaged in the administration of covered countermeasures. The appellate court decision stated that the medical treatment administered was not related to the pandemic and did not qualify as a covered countermeasure.
Cases wind through courts
Assisted living providers that used countermeasures made available through the public health emergency use authorizations could receive liability protection under the PREP Act, which preempts state law liability claims. But several cases winding their way through the courts are challenging those protections.
According to the National Conference of State Legislatures, 22 states passed liability legislation related to COVID-19 in 2020 alone. Most protections tied liability protections to the duration of the state of emergency by the state rather than the federal government, creating varying provisions and timelines on when protections end.
The 9th District Court in late June remanded almost two dozen COVID cases involving long-term care facilities to state courts, following the Supreme court’s refusal to hear a case that could have determined whether such lawsuits should be heard by federal or state juries.