Families and lawyers of seniors who died of COVID-19 in long-term care are outraged at proposed Ontario legislation that would make it harder to sue nursing homes for damages.
“It’s another kick-them-when-they’re down moment,” said Cathy Parkes, who filed a $1.6-million lawsuit after her father, Paul, passed away during a COVID-19 outbreak at Orchard Villa nursing home in Pickering last April.
“I’m not backing down,” Parkes said. “We are all riled up, all of us.”
Civil suits that don’t meet the threshold of gross negligence and intentional misconduct will likely be dismissed by the courts without costs, according to the bill introduced Tuesday by Attorney General Doug Downey.
Downey said the legislation was designed to provide liability protection for health-care institutions, businesses, charities, non-profit organizations, front-line workers and coaches and volunteers if they are blamed for “inadvertent” spread of the virus but made good-faith efforts to follow public health guidelines.
It comes as some nursing homes — which have been seeking a level of immunity from claims — are having trouble getting liability insurance after the virus spread like wildfire through the close confines of long-term care.
“We’re very worried because everyone has so much exposure right now,” said Donna Duncan of the Ontario Long-Term Care Association, which represents about 70 per cent of the province’s 626 nursing homes.
More than 1,900 nursing-home residents have died of COVID-19 with at least 6,400 infected and outbreaks in progress at 87 facilities, several of them serious. Overall, 3,053 people in Ontario perished from the virus and 65,896 have tested positive to date. More than 5,600 have been hospitalized.
Downey tried to reassure families about the proposed law, which would be retroactive to March 17 if passed by Premier Doug Ford’s majority Progressive Conservative government.
“It doesn’t actually let the bad actors off the hook,” he added.
“If you get to the level of negligence, like gross negligence … or you’re just thumbing your nose at the government’s public health suggestions, you’re still on the hook.”
But a lawyer who has six claims against some of the hardest-hit nursing homes — which needed help from Canadian Armed Forces medical teams or nearby hospitals — said some other cases from grieving families will not meet the “high standard” set in the legislation.
“There may be some homes and some victims that get caught in the middle,” said Stephen Birman of the Toronto law firm Thomson Rogers.
“I don’t know how the premier, who promised to hold these (nursing-home) operators accountable, is now pursuing legislation that’s going to make it difficult to advance claims,” he added.
“It’s absolutely backward,” said NDP Leader Andrea Horwath. “These are people who watched their loved ones from afar deteriorating and dying in long-term care because the government didn’t do what it needed to do.”
A Canadian Armed Forces report last spring pointed to horrors that military medical teams found in some of the hardest-hit nursing homes, where staffing levels fell by as much as 80 per cent because of illness and absenteeism driven by fear.
Examples included residents fed or given water while lying down to the point of choking, left for hours or longer in soiled diapers, malnourished, given outdated medications, and not moved in their beds to prevent painful bedsores.
Duncan of the long-term care association and Laura Tamblyn Watts of the seniors’ care advocacy group AdvantAge said there needs to be some level of liability protection for the financial viability of the long-term-care sector.
Some homes are struggling, can’t meet their debt covenants and can’t get financing to renovate or expand to provide better care and reduce waiting lists, Duncan told the Star.
“What should not be protected is the terrible type of incidents that we saw detailed in the military medical report as gross negligence and even, potentially, could be criminal neglect,” said Tamblyn Watts.
“It’s a new world and we need to have a way of understanding that we can’t be perfectly safe anymore. We need to find a reasonable way for accidental transmission that doesn’t have you suing your neighbour, your coach or your pharmacist,” she added.
Downey did not rule out the possibility that cases will be filed with the courts for wrongful death and assault, for example.
“There are still going to be lawsuits out there,” he added. “There is strictly about liability for the inadvertent transmission of COVID.”
While the typical common law standard is whether actions taken were “reasonable,” the threshold is being raised to whether an organization or person made an “honest effort” to follow public health guidelines and laws relating to exposure from the virus, Downey said.
“We made it a little bit strong … so people who have been honestly doing the right thing have a level of protection.”
Downey said the law is also aimed at ordinary Ontarians after organizations such as food banks and minor sports leagues expressed concern from their staffs, volunteers and members of their boards of directors about liability.
“They’re losing volunteers because they’re nervous,” he added, citing the example of a hockey coach being responsible for 15 children at a practice and the possibility that COVID-19 could be spread.
“We want people to feel safe and comfortable making contributions to their community,” he said.
British Columbia has a similar law and Nova Scotia has issued a directive on limiting liability, said Downey.
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