Neville Bilimoria

Just when you thought summer was going well, we now have surges in Missouri and Arkansas of the COVID-19 Delta variant. That’s right, these past few weeks your sunny summer was clouded by news that the coronavirus has made a comeback in Missouri, and the highly contagious Delta variant in particular has been linked to case spikes in Missouri that are among the highest per capita in the country. 

In one county in Missouri, as of late last week, they were seeing more than 196 cases per day, which was expected to outpace hospital space soon if it continues.  And it does looks like the spike will continue, especially since we know the Delta variant is highly contagious among non-vaccinated individuals. 

And that’s the problem… in that same Missouri county, less than 40% of residents are vaccinated.  

So on one hand, we have a not-so-unexpected spike in COVID-19 in Missouri. But then on the other hand, the Missouri Legislature recently passed, and Gov. Mike Parson (R-MO) has now signed into law new COVID-19 liability protections for healthcare providers, including nursing homes. That law was just signed.  

There is a paradox here. You would expect Missouri, unvaccinated as it is, to have a spike in COVID-19 Delta variant cases, but you might not have expected Missouri to pass a new law that would help nursing homes suffering from COVID-19 plaintiff lawsuits.

Despite the surge in his state, Parson says that the new law is intended to prevent “unnecessary and frivolous lawsuits” that seek to punish nursing homes for trying to do the right thing in combating COVID-19. Now plaintiffs in Missouri need to prove that a provider engaged in “reckless or willful misconduct that caused an actual exposure and resulted in personal injury.” 

This “reckless or willful misconduct” standard is higher than the typical “negligence” standard that plaintiffs have been pushing against nursing homes for COVID-19 deaths and incidents. But this is all very strange. 

On one hand, the Missouri Legislature sought to protect nursing homes and other healthcare providers from the onslaught of plaintiff lawsuits due to COVID-19 infections, but one wonders if such energy should equally be spent on making sure that the paltry 40% vaccination rate in Missouri is increased to help stop the current Delta variant surge. Such is the paradox in Missouri. 

We can only hope and pray that our frontline workers can mire through this latest surge to get through this summer, something that is now even more important than the positive liability protection offered by the Missouri Legislature for our nursing homes.  

Neville M. Bilimoria is a partner in the Chicago office of the Health Law Practice Group and member of the Post-Acute Care And Senior Services Subgroup at Duane Morris LLP; [email protected].

The opinions expressed in McKnight’s Long-Term Care News guest submissions are the author’s and are not necessarily those of McKnight’s Long-Term Care News or its editors.