October 27, 2020, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
In the first round of the COVID-19 pandemic death rates were very high in long term care facilities and reports of shortages of basic equipment were numerous. To date over 1900 people in Ontario died of COVID-19 in long-term care homes.
Staff and family members and clients complained of lack of PPE for staff, too many temporary workers being allowed to work in numerous homes, lack of employees to feed, hydrate or clean clients, lack of appropriate protocols in place for keeping clients safe. There was even a case in Quebec where clients were found essentially abandoned and dehydrated as staff were not coming to work.
In some cases, facility managers and owners were purported to be withholding PPE, and were found to be giving the medical staff direction on when to use PPE. Nurses associations were forced to get court injunctions ordering managers to respect medical staff authority to determine the appropriate time and place for PPE use.
Families of clients who died have filed several individual lawsuits and class action lawsuits against many of the homes claiming negligence, abuse and other egregious actions which when combined with the pandemic, caused the deaths of their loved ones. Now the same families and lawyers representing them are sounding the alarm about proposed legislation by the province which they contend will make holding homes to account for the abuses more difficult.
The large for-profit companies that own the nursing homes began lobbying almost immediately for changes to legislation that would include them in a category of service that would be exempt from liability around COVID-19 transmission and deaths. The corporations argue in part that if held liable they would have exorbitant insurance rates moving forward.
The legislation introduced this week would provide liability protection against COVID-19 related lawsuits for those who acted in ‘good faith’ and whose actions did not constitute ‘gross negligence’. The government puts forth that the bill is designed to protect frontline workers like grocery store workers and PSWs, to volunteers and sports coaches. The legislation will be retroactive to March 14, 2020.
The Premier asserts the legislation won’t protect ‘bad actors’ however lawyers of families involved in several lawsuits contend the bill will make it more difficult to hold the homes to account for the deaths, and the abuse and neglect and suffering of their loved ones, and to find justice.
Lawyers are armed with all kinds of evidence of the neglect, abuse, and chaos that exists in the homes including a military report detailing the condition of the residents and protocols in one of the homes they were sent in to help.
The NDP have called on the government to explicitly remove the group of private for profit nursing homes in the province from any exemptions to liability. They claim that the front line workers will be held to account for the situation created by the corporations employing them.
Critics argue that if the intent of the legislation was to protect frontline workers that could easily have been made explicit in the legislation. By wording things so broadly there are fears that the homes with the most ravaged populations will never be held to account for the deaths and suffering of the clients.