Coronavirus nursing home bodies and shackled inmates spark lawsuits — and perhaps justice

We are now seeing the first stirrings of the ways private citizens will use the courts, and the rule of law, to seek answers and accountability.
Image: Coronavirus nursing home
A nurse works in a room at Life Care Center of Kirkland near Seattle on March 13, 2020.Ted S. Warren / AP file
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By Andrew Cohen, senior editor at the Marshall Project

We don't yet know whether and to what extent the public officials responsible for America's too-little, too-late response to the coronavirus will ever be held accountable for their dereliction of duty. We don't know for sure what the congressional oversight promised by House Democrats will look like. Will it be "forward looking" and spare obvious blame, the way the Obama administration fecklessly handled the torture architects of the Bush era? Or will it be thorough, name names and create a complete record of the causes of the tragedy?

We don’t necessarily need to wait for Congress to act, or for Trump administration officials to admit their own deadly mistakes, for some measure of truth to emerge.

Right now, given the political atmosphere, I'd say it's a 50-50 proposition. Meanwhile, prisoners are dying in confinement, health care workers are dying in the same hospitals where they worked and bodies are piling up in nursing homes across the country. This week, for example, we learned that 68 people linked to a single New Jersey nursing home have died from the coronavirus — after an anonymous tip led to the grim discovery of 17 bodies in a tiny four-person morgue.

The good news is that we don't necessarily need to wait for Congress to act, or for Trump administration officials to admit their own deadly mistakes, for some measure of truth and accountability to begin to emerge. Even as the casualties mount, even before the vast majority of us get proper masks and gloves and COVID-19 tests, we see the first stirrings of the ways private citizens will use the courts, and the rule of law, to seek answers and maybe even find some justice in civil lawsuits.

Some of these lawsuits will succeed. Many will fail. Some responsible parties will be held liable and have to pay money damages. Other defendants will avoid having to pay damages but will be forced to change their policies and practices. Through pretrial discovery alone, we may begin to understand the enormity of what is happening in these tragic cases, who ought to be blamed for it and how we can prevent future calamities. The families of the victims deserve nothing less.

In Illinois, for example, two brothers of a man who died of the coronavirus while imprisoned in the Cook County Jail sued the sheriff last week alleging that the conditions of the victim's confinement were unconstitutional. The complaint alleges that Jeffrey Pendleton was illegally shackled to his hospital bed while being treated for the virus. "I don't think Jeffrey Pendleton had to spend his last six days shackled by hand and foot to a hospital bed," said the family's lawyer.

We will likely see in the coming years hundreds of lawsuits like this one filed by the families of prisoners who died of COVID-19 after having been poorly treated, or mistreated, as the virus advanced. Some strong cases. Some weaker. All alleging a form of negligence or "deliberate indifference" on the part of jailers or the medical staff inside facilities who didn't take the virus seriously enough and/or who then refused to release from confinement those whose medical conditions or ages made them particularly vulnerable to COVID-19.

For the families of the incarcerated, most of these lawsuits will fail because the law is set up for them to fail, because legislators and judges over time have erected enormously high evidentiary barriers designed to preclude successful wrongful death claims against corrections officials. But some plaintiffs will prevail. And win or lose, the litigation itself we'll see from these cases around the country will produce evidence that will begin to tell the story of what happened inside these prisons and jails. That's surely a form of accountability, even if no damages are ever paid or prison jobs lost.

Private corporations, too, already have been sued for damages by customers or clients who suffered or died from the virus. In Florida last week, a subsidiary of Carnival, the massive cruise line, was sued by passengers who say the company failed to take adequate precautions to protect passengers even after they knew or should have known that the virus had found its way aboard ships. This litigation may or may not turn into a class action, and the plaintiffs may or may not prevail. But pretrial discovery ought to be powerful.

There is even a lawsuit against Fox News under state law in Washington alleging that the network engaged in the "intentional infliction of emotional distress" and "knowingly disseminated false, erroneous, and incomplete information" about COVID-19. This lawsuit likely will fail for a number of reasons, but wouldn't it be something if the state court required network executives to be deposed about how all those early broadcasts disseminated information about the pandemic that was at odds with the guidelines of public health officials?

Some civil litigation isn't aimed at deadly negligence but rather the freedom to travel within the nation's borders. Local officials who have implemented "shelter" orders and other decrees restricting travel have been sued by homeowners and others who say, coronavirus or no, that they have a constitutional right to drive across state lines, or county lines, to get to their (second) homes. That's happened in North Carolina, in Kentucky and in other jurisdictions. There also have been civil lawsuits brought by residents protesting shelter orders.

And there doesn't have to be death for there to be misconduct. A group of Kansas nurses, for example, sued a recruiting company after they say they were promised $10,000 a week to travel to New York City to provide health care and then were left without adequate training or protective gear. Students at at least two colleges have sued school officials claiming they shouldn't have to pay full price for online courses that devalue their educational experience.

What's next? We will certainly see a wave of lawsuits brought against the owners and operators of those nursing homes in New Jersey and Florida and beyond that tragically failed to protect their vulnerable residents from the coronavirus. This explains why some of those owners and operators are begging Florida's governor, who's got his own problems when it comes to accountability over COVID-19, to authorize some form of immunity for the coming litigation.

It will take years for these cases to wend their way to resolution. And that's after the courts fully reopen for business around the country. No one says the answers will come swiftly. But for now, it's enough to know that at least some answers will, eventually, come.