By Sean Campbell, ProPublica
In early April, before COVID-19 hit her state hard, Palestine Howze was in a Durham, North Carolina, nursing home, living in pain.
She had lost her legs to diabetes, and for months she had been suffering through a bedsore. In her medical records, staff noted that Howze, 71, would moan through the night.
Her daughters had been told about the bedsore back in August 2019, and it was a small spot, no bigger than a quarter when Howze’s daughter Lisa saw it. But as it persisted, they wondered why it wasn’t going away. They say the facility reassured them that the wound was under control.
Then on April 2, 2020, Lisa Howze received a call from the nursing home. The sore had become infected.
In fact the bedsore had been worsening for months. By December 2019 it was, in clinical terms, a “stage 4 pressure ulcer.” The wound specialist treating the sore had to resort to cutting away rotting flesh and bone. In early April, the doctor said Howze should be switched to intravenous antibiotics.
Lisa Howze wasn’t told any of those particulars, she said.
What she did sense was that her mother needed more care than the home, the Treyburn Rehabilitation Center, could provide.
So in the days that followed, she and her sisters repeatedly sought to have their mother hospitalized, they said. As the wound worsened, a nurse wrote, “If condition declines,” daughter “would like patient sent to hospital.”
Lisa Howze had her mother’s health care power of attorney, but it seemed to carry little weight with the nursing home.
“We were fighting for her to go into the hospital because we knew they couldn’t treat her,” Lisa Howze said.
Desperate, she contacted the state health department to complain about her mother’s care.
On April 14, Palestine Howze died, still at Treyburn.
And it wasn’t COVID-19. Howze had tested negative.
Her daughters were devastated. “I couldn’t mourn through my anger, because I felt guilty that I had failed her,” Lisa Howze said, “like there was something more I could have done to make them send her to the hospital.”
She wanted answers, and she wanted Treyburn held to account for her mother’s death. So she hired a lawyer to file suit against the facility, which, the family would learn, has a history of low government ratings for quality of care and sizable fines from federal regulators.
But while COVID-19 hadn’t killed her mother, the pandemic was going to make her lawsuit against Treyburn all but impossible to pursue.
As COVID-19 deaths were rising and scenes from the epicenter in New York offered a grim warning of what lay ahead, North Carolina gave nursing homes, hospitals and other health providers remarkably broad immunity from lawsuits.
Signed into law in early May, just days after being proposed, North Carolina’s protections went further than many states, precluding even claims that don’t involve COVID-19 treatment or that stem from staffing shortages that could otherwise be evidence of gross negligence.
Gov. Roy Cooper, a Democrat, had already issued an executive order shielding health workers from being sued in connection with work during the emergency. But the industry wanted broader protections, for hospitals, nursing homes, clinics and medical practices.
A few lawmakers tried to slow down the legislation, warning that the protections were too expansive. But the immunity provisions had been rolled into a COVID-19 relief bill that seemed too important to be delayed. Lawmakers championing the measure told their colleagues to “trust the process.”
Five days after the immunity language was introduced — by a legislator who is himself a physician — the bill was on the floor of the General Assembly. Six days after that, it was signed into law by Cooper. And it was retroactive to the governor’s state of emergency declaration on March 10 — more than a month before Palestine Howze died.
In a state that has cast itself as a friend to industry, the breadth of North Carolina’s protections spoke to the power of Republicans over the economic agenda and the influence of the health care lobby. The industry contributed more money to state legislative races than any other business sector over the past decade, according to the data collected by the nonprofit National Institute on Money in Politics.
For the Howze sisters, the law has upended their quest for accountability. Their lawyer wasn’t even sure she could continue with the case after the immunity provisions were enacted. And after investigating the family’s complaint, the state health department told Lisa Howze that its inspection of Treyburn, conducted several weeks after Palestine Howze died, had not found evidence of “noncompliance.”
ProPublica sent Treyburn and its parent company, Sovereign Healthcare Holdings LLC, a list of questions about the Howze case. ProPublica also said the family had agreed to waive its privacy rights so that the facility could comment.
In response to ProPublica’s inquiry, a lawyer representing Treyburn and its parent company declined to respond to specific questions about the lawsuit, which is being heard in Durham County Superior Court. In court papers, the nursing home has denied that Lisa Howze ever asked for her mother to be sent to the hospital.
In a filing in the case, Treyburn and its parent company said the new law makes them immune from liability, and in another filing, they denied all allegations of negligence and argued that the contract Palestine Howze signed requires her family’s claims to be heard by a panel of arbitrators, not a judge or jury.
“While we regret and sympathize with the Howze family’s loss of a loved one during this difficult time, we feel that the case is defensible, factually and legally, and we would prefer to let the legal process run its course on both fronts,” the lawyer, H. Lee Evans Jr., told ProPublica.
Richard S. Saver, an expert in health law at the University of North Carolina at Chapel Hill, said that many nursing homes were short-staffed well before the pandemic and that by eliminating the ability to claim that staff shortages affected care, the state has made it extremely difficult to hold nursing homes accountable during the pandemic.
“This has been an industry with a long and sad and complicated history of insufficient quality regulation,” he said. “Given that may be the norm and the custom, proving that this is so beyond the pale for bad faith is going to be an uphill battle for plaintiffs.”
Hospitals and nursing homes weren’t the only industries worried about being sued as the pandemic unfolded. Everyone from grocery stores to universities had concerns, and many asked legislators to shield them from liability.
But the health care industry was at the center of the crisis and had extra cause for concern. So across the country, lobbyists for hospitals, nursing homes, clinics and medical practices were working the virtual corridors of power in the first weeks of the pandemic.
The North Carolina Medical Society, which represents physicians’ interests and has over 10,000 members, asked for “blanket immunity for all health care workers” responding to the emergency.
Speaking to state legislators on March 26, the head of the medical society, Chip Baggett, said his members didn’t yet have the resources they needed and were anxious about the potential for malpractice lawsuits.
“We were flying blind in that situation,” he told ProPublica.
In North Carolina and around the country, all eyes were on New York, which was losing hundreds of people a day. There, the powerful Greater New York Hospital Association had drafted legislation asking for broad immunity, and on April 3, Gov. Andrew Cuomo signed a bill with expansive protections.
The New York bill would serve as a template for the lobbying effort in North Carolina, and the industry succeeded in having the language included when the House’s health care working group was drafting the state’s first public health legislation of the pandemic.
In the group’s final meeting before the start of the 2020 legislative session, Republican Rep. Perrin Jones, a practicing anesthesiologist, introduced his amendment to the public health bill that gave broad immunity to health care providers from lawsuits.
“If you are acting in good faith for that patient, then you should be doing the best that you can and not having to worry about civil or criminal liability concerns after the fact,” said Jones (whose last day in office was Dec. 31, after he lost his bid for reelection in November).
The amendment mirrored the measure that had been signed into law in New York weeks earlier. The two pieces of legislation even have the same name: the Emergency or Disaster Treatment Protection Act.
Addressing fellow legislators, Rep. Gale Adcock, a Democrat, said that as a nurse practitioner, she knew how hard working during the pandemic must be for health workers and lauded the amendment. “It really adds a lot to this bill.”
Right before the vote by the working group, Rep. Lee Zachary, a Republican like Jones and the lone lawyer in the group, interrupted.
“I don’t know if it was filed last night, or what, but I haven’t seen it,” Zachary said, and plaintiffs’ groups hadn’t seen it. (Nor had North Carolina’s health department, which regulates the state’s nursing homes, according to the agency.)
Rep. Donny Lambeth, a Republican, who is a health care consultant and former hospital executive, defended the amendment and said there would be opportunities to change the bill in future meetings.
The amendment passed, with Zachary the lone holdout.
Lambeth and Adcock did not respond to requests to their legislative offices for comment about the amendment; Jones, who is no longer in office, did not respond to repeated attempts.
Zachary thought the measure was too broad, and later floated a proposal to narrow it, but said he was told, “It’s going to be the way it is, and that’s the way it is going to be.”
Similar concerns surfaced when the protections reached the House, and Rep. Yvonne Holley drafted an amendment to restrict the measure.
“We’re opening up a can of worms across the state,” Holley told fellow lawmakers in a Rules Committee meeting.
But like Zachary, Holley found little support among her colleagues. Adcock pushed Holley, a fellow Democrat, to withdraw the amendment, and Holley did. (Holley, who lost her run for lieutenant governor last year, left the legislature at the end of her term on Dec. 31.)
When the state’s COVID-19 relief bill was up for a final vote on the House floor three days later, the immunity provision again faced questions, and again it was defended.
“It basically says that if you’re operating in good faith and doing all that you can in this trying time, it provides a limited amount of immunity in case there is a small mistake that is made,” then-Rep. David Lewis told a fellow legislator who questioned the immunity.
The bill passed both chambers unanimously and two days later was signed into law by Cooper. The governor’s spokesman, Ford Porter, declined to answer questions from ProPublica about the immunity provisions.
In New York, legislators faced an outcry over the expansive scope of the liability protections and four months later scaled them back.
But North Carolina’s immunity coverage has expanded. On July 2, the state became one of at least 16 that extends the liability shield to any business for claims that stem from COVID-19 exposure. In Washington, D.C., Republicans have been trying to make similar protections part of national COVID-19 relief, but the Senate majority leader, Mitch McConnell, hasn’t found a way to pass broad immunity for businesses.
Both North Carolina laws were cited by Treyburn in its motion to dismiss Lisa Howze’s lawsuit.
“This is the thing I was trying to fight against,” Holley said after learning of the Howze lawsuit and the nursing home’s efforts to have the case dismissed.
“Mama, Are You in Any Pain?” The Road to Treyburn.
Palestine Howze and her four daughters had always lived near one another in Durham, and they gathered often for family cookouts. The matriarch was active until complications from diabetes started causing intense pain in her legs. Eventually she had to have both limbs amputated above the knee.
She was placed in a series of nursing facilities for rehabilitation after her surgeries. In one, she had a stroke, and soon after she was hospitalized for a bedsore on her tailbone. She was then discharged to another nursing home before the sisters decided to move their mother in with her daughter Lisa.
Lisa Howze was out of work and on disability because of arthritis, but she became her mother’s primary caregiver, changing her mother’s dressings and keeping her wound clean and dry.
Her mother’s health improved and the bedsore healed. Howze family gatherings became a staple once again. “Everything just flowed,” Lisa Howze said.
But Lisa Howze’s energy couldn’t hold out. As the months passed, she found herself increasingly drained.
Her mother had vascular dementia. Sometimes Lisa Howze would have a conversation with her mother, and later she would scream for her daughter to come back, late into the night. Lisa Howze was already caring for a 4-year-old daughter.
One day, when she went to lift her mother from her bed into her wheelchair, she dropped her. It was a warning. “I couldn’t care for her and myself,” Lisa Howze said.
Treyburn, a 132-bed, for-profit facility on the northeastern edge of Durham, was a short drive from the sisters’ homes. The administrator they met was friendly. Like Howze, many of the residents were Black. From what the sisters saw on their first visit, it seemed like a good facility. They said the administrator emphasized the good care Palestine Howze would receive.
But Treyburn does not have a good record. It has a one-star quality rating from the federal Centers for Medicare and Medicaid Services, which means it is in the bottom 14% of nursing homes nationwide. Most of the residents’ care is paid through Medicaid, the state and federal health care program that serves people with low incomes.
In 2018, Treyburn was fined $188,762 for injuring a resident and having a resident sit in a soiled diaper for hours, among other violations. Over a three-year period through mid-October, it was cited more than 30 times by federal regulators, including 12 citations in February related to resident care and treatment. The facility was cited for deficiencies again in July and October, including an incident in which a resident was hospitalized for an infected pressure ulcer.
The facility submitted mandated plans to address the deficiencies cited by inspectors, though it noted that it was not admitting or agreeing to the inspectors’ conclusions.
The facility had one of the highest counts of COVID-19 infections and deaths in the state with at least 73 resident cases and 23 deaths, to go along with 26 staff infections, before its first outbreak cleared in July. The facility had to deal with another outbreak between September and November when an additional three staff members and a resident caught the virus.
The family had checked in on their mother regularly, but months before COVID-19, they say the care she received began to wane. In August 2019, she had developed the new bedsore. Lisa Howze said she was shown the pressure ulcer, and it was just a small circle on her mother’s bottom. Such sores can develop when an infirm person remains in the same position for too long in a bed or wheelchair.
As the wound grew worse, the specialist treating it had to cut away dead flesh, Howze’s lawsuit states. The doctor’s notes indicate that in December 2019 Lisa Howze consented to “additional procedures” for wound care, though she said she was not told how invasive those procedures would be.
When Palestine Howze was evaluated by a nurse in February, she said her wound was causing her “terrible” pain and asked, “When can I go home?” But when her family visited, they say she seemed to hide her suffering.
After Cooper issued a state of emergency on March 10, family visits were halted. Worried that their mother’s condition would worsen without their attention, the family asked about having her taken to a hospital for treatment. Her daughters said Treyburn staff reassured them that the facility could care for their mother.
The nurse who told Lisa Howze about the infection wrote in her notes that she was “very angry her mother’s wound is not healing,” and Lisa Howze said that during that call, she reiterated the family’s request that her mother be moved to the hospital.
Lisa Howze’s lawsuit asserts that in refusing that request the nursing home was failing to meet a good-faith standard of care, a claim Treyburn denies.
Palestine Howze’s medical documents show that the facility was struggling to get an infectious disease specialist to assess the infection. A doctor who was treating Palestine Howze recommended that the nursing home begin providing antibiotics intravenously. On April 3, a facility nurse wrote that there is a “dire need for appointment” with a specialist, but that “due to current situation” obtaining such an appointment “is difficult.”
The next day, Lisa Howze mentioned the infection to her sister Angela, who started to cry. “I thought she was going to die,” Angela Howze said.
Three of the sisters, Earlene, Angela and Lisa, went to Treyburn on April 6 to reiterate the demand that their mother be transferred to a hospital for treatment, Howze states through her complaint.
In a video from their visit. Lisa Howze has her face pressed against the window into her mother’s room. “Mama, we love you. Mama, are you in any pain?”
When Republicans took control of both houses of the North Carolina legislature in 2010, it was good news for many in the state’s business community.
The health care industry was among those that welcomed the changes, and in 2011, the legislature strengthened the state’s medical malpractice laws, making claims harder to file and capping what plaintiffs could collect.
In states where similar changes were made in recent decades, researchers at Northwestern University found declines in hospital patient safety. Once the risk of lawsuits fell, so too did hospitals’ incentives to maintain safety, the authors wrote in a recent paper examining the effects of caps in five states. In the years following the reforms, patient care worsened in areas like infection control and surgical injuries, compared with the 26 states that did not change their laws. The paper is being submitted to academic journals for publication.
Northwestern law professor Bernard Black, one of the authors of the study, said nursing homes face a similar risk dynamic. “Deterrence matters, and if you make people more liable, then they are more careful,” he said.
In North Carolina, Hillary Kaylor, the state-funded advocate for residents of nursing homes in the Charlotte area, says that since the greater legal protections were introduced, nursing home operators have become less responsive to concerns she raises on behalf of residents and their families. Now, she says the response is generally: “Yeah, go ahead and call the state. We’ll see if it works or not.”
The new protections came at a time when the pandemic was already making it much harder for nursing home regulators to do their job.
On-site inspections of the state’s nursing homes, which include checks for infection control, declined dramatically during the early months of the pandemic, according to a December report from the U.S. Department of Health and Human Services.
At least 45% of the nearly 7,100 people who have been killed by COVID-19 in North Carolina were residents or staff of long-term care facilities, and many more have been stricken by the disease but survived.
One study done by public health researchers in North Carolina found that nursing homes with a low rating from the Centers for Medicare and Medicaid Services had higher infection and transmission rates of COVID-19, compared with higher-rated homes.
The new law, the Emergency or Disaster Treatment Protection Act, shields a health care facility from cases of negligence if the facility was impacted by COVID-19 in any way and is “providing health care services in good faith.”
By that standard, a claim would have to prove “gross negligence” — that harm was almost assured, and that the facility ignored the obvious risk. But the new law precludes claims of gross negligence that are based on shortages of staff or other resources, problems that are often the most common in long-term care facilities.
State court data through the first few months of the pandemic showed a modest decline in civil suits, including medical malpractice claims, after the immunity was put in place. But those declines could be driven by any number of factors, and data from the second half of the year hasn’t been released. With three years to file malpractice claims and two years to file wrongful death suits, prospective plaintiffs and their lawyers may be waiting to see how the new immunity laws play out.
Black, the Northwestern professor, said given the extraordinary demands of the pandemic, nursing homes may well need a measure of additional legal protection. But he said extending those protections beyond COVID-19 and into otherwise routine care is very hard to justify. “It’s one thing to say you didn’t know about COVID, it’s another thing to say that excuses you for bedsores. Come on, that’s nuts.”
Loss and Accountability
While Palestine Howze was still in Treyburn, Lisa Howze said she called the North Carolina Department of Health and Human Services to report the concerns she and her sisters had about their mother’s care. She hoped the state would check on her mother, but by the time she received an initial response, on April 21, her mother was dead. In late May, the facility was inspected by state nursing home investigators, and in June, the state wrote to Lisa Howze to say her complaint had not been substantiated.
On Palestine Howze’s death certificate, dementia is listed as the cause of death. The document does not reference her infected bedsore, which went to the bone, or the signs of sepsis that were noted in her medical records the day before she died.
Lisa Howze said the omissions only added to her anger and pain as she mourned her mother.
The funeral, carried out under pandemic precautions, was a world away from the family’s cherished cookouts. The coffin was placed in an open field in Glenview Cemetery. Attendance was limited to 15 people.
Palestine Howze and her four daughters were dressed in red, the mother’s favorite color. The sisters were seated by the coffin. The other attendees had to watch the service from their cars.
When the funeral was over, the daughters were told to drive away. They didn’t get to see their mother lowered into the ground.
Lisa Howze said Treyburn had made her feel powerless, and she was determined to make the home answer for her mother’s death.
Her lawyer, Elizabeth Todd of the Law Offices of James Scott Farrin, agreed in late April to pursue the claim against Treyburn on behalf of the Howze family. It looked like a strong case, Todd said.
Two weeks later, the liability provisions were signed into law, and the prospects for the case looked very different.
“I told them I had to drop it,” Todd said.
Still, the death of Palestine Howze stuck with her. In July, she decided to take a chance. If she could prove Treyburn wasn’t acting in good faith, then the new law’s protections wouldn’t apply. Todd concluded that the treatment of Palestine Howze was egregious enough to back up the argument. As required under statutes enacted long before the pandemic, Todd had the case certified by a medical expert before filing.
But with the new law, Howze’s lawsuit faces other hurdles. Not only is the nursing home claiming immunity, but it is also asserting that the family’s claims must be made in arbitration. There, the claim would be decided by a panel of private lawyers paid for by the parties to the case, not a judge or jury. If the case were moved to arbitration, the company could invoke immunity there as well, experts say.
With the courts in North Carolina backed up because of the pandemic, it may be months before the motion to dismiss or the motion for arbitration is decided.
Lisa Howze understands it won’t be an easy case to win. But what she’s learned already about her mother’s care has only made the family’s fight more urgent.
“Someone has to be held accountable,” she said.