Immunity law leaves Mass. families ‘pushing 1,000 lb boulder’ to get justice for loved ones who died after getting COVID-19 at nursing homes

BOSTON — It was supposed to be a short stay at Fitchburg Healthcare for Massae Hodges. The 73-year old needed physical therapy after back surgery in mid-April and the skilled nursing facility was the only one with an open bed at the time.

“She needed physical therapy. Short term, we’re talking a couple of weeks, and then she was just going to go home.," said Hodges’ daughter, Suzanna Smith.

But according to Smith, the routine stay turned fatal because Fitchburg failed to tell the family it was dealing with a COVID-19 outbreak when Hodges was admitted.

"Fitchburg did not do their due diligence to communicate with us that there was an active infection during that time period. Otherwise, my father would have never, ever, ever let her have gone there,” said Smith, one of Hodges’ two kids. Massae was born in Okinawa, Japan. That’s where she met her husband, James Hodges. Hodges is a five tour, Bronze Star, Purple Heart recipient veteran of the Vietnam War, according to Smith. She says her parents were a largely inseparable couple during their 46 years of marriage.

Just a couple of weeks into the stay, Smith says, Hodge’s husband got a call from the Department of Public Health with some rather unexpected news.

"They said ‘Mr. Hodges, I just wanted to inform you, your wife tested positive for COVID-19.’ He was like, ‘What? What do you mean?’ They said, ‘We had an active infection on the floor that she was in and we tested everybody on the floor and everybody on the floor is positive,’” Smith said.

Smith says the family was never informed that she had been tested nor that she had any symptoms.

Once Hodges’ was diagnosed with COVID-19, Fitchburg Healthcare promised them daily updates on her condition. But, Smith says, communication with the facility was challenging.

"I called the main number over and over and over and over and over again. Probably over 20 times on my phone, the main number wasn't going to voicemail. Nobody was picking up,” said Smith.

MORE: 25 Investigates: After multiple calls for transparency, Mass. updating nursing home COVID data

After days of little to no communication, Smith says, the family got a call informing them Hodges’ condition was deteriorating – her oxygen levels were dropping and a fever was spiking – and she would be rushed to the hospital.

“I called the hospital and I speak to the person caring for her at the time and they said ‘Suzanna, she is beyond dehydrated. Her lips were so chapped they were bleeding. They said she must have not had had water in a very, very long time,’" said Smith.

Massae had developed pneumonia and was placed on a ventilator soon after arriving at the hospital, according to Smith, who says she is haunted by the sight of her mother in her final days – her face swollen from treatments and IVs.

On May 5th, three weeks after Hodges was first admitted to Fitchburg, the family made the decision to remove the ventilator.

“She’s Buddhist. So I remember going outside and seeing butterflies and that was her saying goodbye,” said Smith.

“I had so much pain... I’m so sorry this nursing home hurt my mom. I believe the facility should be held accountable for what happened to my mother,” she said.

MORE: 25 Investigates: AG Healey calls for more transparency inside nursing homes amid coronavirus crisis

As 25 Investigates has reported in recent weeks, nursing home deaths account for more than half of the state’s 7,454 COVID-19 fatalities. But families seeking justice for a loved who died after contracting COVID-19 at one of the state’s 442 long term care facilities may face an uphill battle because of an emergency bill Gov. Charlie Baker filed that grants them immunity.

The bill which was introduced by Baker himself is meant to allow health care workers on the frontlines of the COVID-19 pandemic to do their job without fear of getting sued. At least 18 other states have passed similar emergency immunity orders.

Critics of MA’s immunity bill say it doesn’t just protect the workers, it also shields the companies and executives that run the facilities and it leaves grieving families seeking justice largely without legal recourse.

“The road to get there is going to be pushing a 1,000 pound boulder up a hill,” said David Hoey, an elder abuse and neglect attorney. “It goes against the definition of tort law, which is designed to compensate for a harm public safety and deter wrong conduct. With an immunity statute that's gone.”

MORE: 25 Investigates: State’s official COVID-19 death toll at nursing homes may not tell full story inside some facilities

Hoey is not representing Massae Hodges’ family, but says any family seeking to take legal action against a long term care facility due to coronavirus will have to prove gross negligence, a very high bar that requires showing workers deliberately and intentionally did not protect residents from neglect.

“I think the bill's initial intent was to protect the workers, doctors, the nurses, maybe even the certified nurse's aides that provide the hands on care, and I'm okay with that,” added Hoey. “What I fear is that it also protects those corporations, the hospitals, their affiliates, subsidiaries, the nursing homes, from protection as well. A concern I had is how to heck the assisted living industry attached themselves to this bill to this immunity. They are not healthcare providers under Massachusetts law, somehow, someway they got on this bill.”

He points out that many long term care facilities had serious problems, like understaffing and poor infection control plans, long before the pandemic.

“They were ticking time bombs. It just so happened to be that the COVID is what ignited the bomb,” Hoey added.

Gov. Baker introduced the immunity bill at a time when there was a shortage of personal protective equipment and coronavirus tests, and healthcare workers faced federal and state guidance that was changing almost on a daily basis. Sources tell 25 Investigates the bill was “hastily” put together. In fact, it was fast-tracked through the Massachusetts house and senate. Baker signed it just nine days after he introduced it. 25 Investigates attempted to discuss the bill with lawmakers involved in the bill, but we were referred back to the governor. Baker’s office did not respond to our questions but offered that “the administration will review any legislation that reaches the Governor’s desk.”

In a statement, the Massachusetts Senior Care Association, which represents the state’s nursing homes, said the bill was necessary given the extraordinary nature of the pandemic. The statement said:

"During this period of unprecedented challenges resulting from the pandemic, nursing facility staff have worked diligently to provide professional and compassionate care for our residents. Putting aside their own fear, staff have worked tirelessly to meet the care needs of our residents. They deserve our support and gratitude. The Massachusetts law does not provide immunity for conduct that is grossly negligent, reckless or intentional. As a result, consumers would have legal recourse against any health care provider based upon that conduct. Given the unique circumstances of the pandemic, this is fair and reasonable standard for all health care providers, and allows for legal accountability in appropriate circumstances.”

Under the emergency law, the state attorney general can investigate and take legal action against nursing homes whose response to the pandemic warrants it. Maura Healy’s office is currently investigating the Life Care Center of Nashoba Valley and Holyoke Soldier’s Home, site of the second deadliest COVID-19 outbreak in the country. Her office told 25 Investigates’ Kerry Kavanaugh that they are “monitoring allegations of wrongdoing at nursing homes across the state and will use our authority to investigate potential illegal conduct, including that of nursing home executives.”

Since the pandemic started, 21 others have died due to COVID-19 at Fitchburg Healthcare, where Massae Hodges briefly stayed. In a statement, Next Step Health Care, which operates the Fitchburg facility, told 25 Investigates:

“Fitchburg Healthcare initiated steps on March 10th to limit visitation due to the COVID19 pandemic outbreak in Massachusetts. In addition, since that time, ample PPE as well as measures such as screening employees, isolation rooms, enhanced and increased infection control protocols and integrating guidance from State and Federal agencies such as the Department of Public Health, Centers for Medicare and Medicaid and Center for Disease Control. The safety of our residents and employees is of the utmost importance and this is at the center of all decisions we make. It would be a violation of an individual’s HIPAA and PHI protected rights to confirm or deny that they are or were a resident at our facility at any time without written express authorization. We have implemented a number of resources for our family members during this time including but not limited to virtual visitation, Send A Smile Program, a dedicated Family Liaison Phone Line, providing updates on our Coping During COVID portion of the company website to name a few. In addition, the number of new cases is posted each day for the prior day. Massachusetts implemented a Nursing Facility Infection Control Competency Checklist on April 27, 2020. This inspection occurs on site at nursing homes through the State through Mass Health. Fitchburg Healthcare, has received two on site audits and in both cases received a perfect score of 28 out of 28. The frail and elderly in nursing homes are some of the our most vulnerable citizens and we are saddened by the number of deaths throughout nursing homes in Massachusetts and extend our express sympathy to all their families.”

But for Suzanna Smith, Hodges’ daughter, sympathy is not enough. She wants justice for her mother and is calling for changes to the healthcare immunity bill.

“It’s faulty and it needs revisions so that it does not protect the people it shouldn’t protect," she said.

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