Survivors of a former North Carolina nursing home resident are suing the facility where she died in what could be a litmus test for the patchwork of liability protections granted to healthcare providers across the country.

North Carolina is one of nearly 30 states that gave nursing homes legal immunity to shield them from lawsuits during the pandemic. Nursing homes, which lobbied unsuccessfully for national liability protections, have said they need protection since they became ground zero for a contagion that the entire country is still struggling to fight after 10 months.

The family of Palestine Howze is pursuing a case against Treyburn Rehabilitation Center in Durham, NC, where she died in April of non-COVID causes. In many cases, immunity given during the pandemic extends beyond COVID-related cases.

NPR shared Howze’s story this week and reported her family’s lawsuit is “believed to be the first of its kind to challenge nursing home immunity.” The family said Howze developed a pressure ulcer that became infected, and the facility declined to send her to the hospital for treatment citing the pandemic.

North Carolina passed its liability shield law a month after Howze’s death and made it retroactive to March 10. It runs through the end of the public health emergency, which is currently extended into April but is projected to be lengthened at least through 2021.

“For the Legislature to say that the nursing homes need protection in the middle of a pandemic, not the nursing home patients, is outrageous and it’s unjust,” Elizabeth Todd, the family’s attorney, told NPR.

In October, a federal court ruled that a Pennsylvania nursing home could not claim preemption and federal immunity under the “Public Readiness and Emergency Preparedness Act,” or PREP Act. Although then-Sen. Majority Leader Mitch McConnell (R-KY) argued for federal corporate liability protections, he abandoned the fight in agreeing to a second COVID-19 relief package in December.

But many nursing home provider associations have lobbied successfully for passage of state-level protections from civil suits. Dave Voepel, CEO of the Arizona Health Care Association, told NPR having such protections ‘just takes a little bit of pressure off,” and lets facilities worry about “keeping COVID out of the building.”

ProPublica and The News & Observer first reported on the Howze family’s suit.  A lawyer for Treyburn’s owner, Sovereign Healthcare Holdings, said told them “the case is defensible, factually and legally, and we would prefer to let the legal process run its course on both fronts.”

Despite the popularity of immunity with providers, legal experts have previously said facilities may still be held liable for gross negligence under the orders. 

The Howze case could prove that warning true. A North Carolina Superior Court judge must now decide whether to dismiss it because of the immunity statute or allow it to continue, possibly in  arbitration. That could take months in a state where courts are backed up due to the pandemic.