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'Little Legal Recourse:' Louisiana laws protect nursing homes from most lawsuits

This is Part Six of WWL-TV's investigative series "Standard of Care," an in-depth look at COVID-19's impact on Louisiana's nursing homes.

NEW ORLEANS — They care for our sick, our frail, our elderly. And in many cases during the deadly coronavirus pandemic, nursing homes have been overwhelmed by infections, illness and death.

“It's a shame. It's a tragedy. And we need to learn something. And we need to do something different,” said Jim Cobb, a New Orleans attorney and nursing home law expert. “Mistakes are all around.”

Not since Hurricane Katrina has the vulnerability of nursing homes been so exposed. The numbers show that out of the state's more than 2,485 COVID-19 deaths as of Wednesday, more than 42 percent have been residents of nursing homes or assisted living facilities.

WWL-TV’s investigative series, “Standard of Care,” has shown that hundreds of  state nursing homes were overmatched and underprepared for the lethal pandemic. Many homes lacked everything from personal protective equipment to enough staff to wear it. Isolation proved difficult in homes designed for communal living.

“They eat together. They play bingo together. They chat together,” Cobb said. “Sometimes, it's two people to a room. There's really no way to avoid that kind of closeness.”

The recent count from the Louisiana Department of Health on Wednesday showed that 1,062 nursing and assisted living home residents have died due to COVID-19.

Now some of those families are wondering what could have been done, and legally, what should have been done under state and federal guidelines. Other states have already seen nursing homes dragged into litigation.

“They are filing lawsuits against nursing homes in Florida left and right,” Cobb said.

If anyone knows about nursing homes and the law, it's Cobb. He represented Sal and Mabel Mangano after 35 elderly residents drowned during Katrina inside their Chalmette nursing home, St. Rita's. He wrote a book about the case: Flood of Lies: The St. Rita’s Nursing Home Tragedy.

RELATED: 'Flood of Lies' author says he tells the true St. Rita Nursing Home story

Cobb sees many parallels between how nursing homes handled Katrina and the current deadly pandemic.

“I had empathy for that position back then,” he said. “It was a shame that the federal levees broke, and 35 old people died in their wheelchairs and beds.”

Empathy, yes, but legally, Cobb gained acquittals on 118 counts of negligent homicide and cruelty against the Manganos. In civil court, he whittled lawsuits down to relatively small out-of-court settlements.

“Nobody thought we had a chance,” he said. “Not even Channel 4.”

So with the current coronavirus disaster, do families have a chance in court after losing a loved one to COVID-19 inside a nursing home?

Very remote, said Cobb and other legal experts.

“It's going to be almost impossible for them to recover damages under Louisiana law,” said WWL-TV legal analyst Chick Foret.

Even if mistakes were made, Cobb and Foret explained, the legal threshold to win a lawsuit against a Louisiana nursing home is high.

First, a plaintiff must prove medical malpractice, a multi-step process that first requires approval by a medical review board.

And when Gov. John Bel Edwards declared a state of health emergency on March 11 due to the pandemic, collecting legal damages got even harder.

“The Louisiana legislature changed the law after Katrina, especially what happened at St. Rita's,” Cobb said. “They said that in a state of health emergency, that nobody can be prosecuted unless there is willful gross negligence.”

“Gross negligence” is considerably more difficult to prove than ordinary negligence, so much so that such lawsuits are rarely even filed, Foret said.

Denise Bottcher, director of the Louisiana branch of the AARP, said her group has even had to beat back lobbying efforts that would grant even greater protection to nursing homes: immunity, virtually eliminating the possibility of lawsuits altogether.

“We have seen the trend across the United States wherein governors have issued executive orders, legislators have pursued other measures, so we really wanted to get ahead of it before it were to materialize here,” Bottcher said.

Even without immunity for nursing homes, few lawyers are willing to take them on.

“There are lawyers who don't even handle malpractice cases. Now you've got to go above that for gross negligence,” Foret said.

Cobb’s connection to pandemic runs much deeper than his legal expertise. His mother, 89-year-old Dorita Cobb, contracted COVID-19 at St. Francis Villa nursing home in River Ridge.

She died at Ochsner Hospital on April 12th.

Cobb recalls the bitter reaction from families in the St. Rita’s case, a few wishing his family the same fate as them and their loved ones.

“There is some irony there,” he said.

Cobb said his mom was placed in quarantine after the virus invaded St. Francis.  She still got infected.

“It was no perfect response,” he said. “But again, this is the first time that anybody's ever seen this. There's no playbook. There are no guidelines.”

Knowing the intricacies of the law, Cobb said he never thought about filing a lawsuit. But that doesn't make the loss of his mom any easier.

“You want to be mad at somebody? You want to blame somebody? Blame the virus,” he said.

Like so many who lost loved ones in nursing homes to the virus, Cobb said the hardest part was not being able to say a proper goodbye.

RELATED: 'Suffering in Silence:' How loved ones of nursing home residents dealt with isolation and loss

RELATED: 'Disaster Mode:' Death, outbreaks hit nursing homes hampered by lack of testing, protective

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