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COVID Executive Order Limits Malpractice Lawsuits

face masks hang from IV pole
Jenny Kane
A Central Illinois man says he can't get an attorney to take his medical malpractice case because of the governor's executive order providing legal immunity to health care providers during the pandemic.

Changes made during the early stages of the pandemic are having long-lasting effects on the legal system.Back then, Gov. JB Pritzker signed an executive order to make it harder to sue health care providers for wrongdoing. That was supposed to protect providers amid a surge of COVID-19 cases.

One central Illinois couple says they had a terrible experience at one health care facility, but because of the governor's order, they can't find an attorney who will take their case.

A warning: Some of the details in this story are graphic.

David and Marsha Taylor portrait
Credit courtesy
David and Marsha Taylor of Fairbury

David Taylor of Fairbury contracted the coronavirus last March. He spent three weeks on a ventilator. He couldn't walk or lift his right hand. His speech was poor. He couldn't remember his own family. When Taylor was discharged in April, he needed rehab and went to Kindred Hospital in Peoria.

Taylor said he had a wound near his tailbone. It kept getting worse. He couldn't see it, but he could smell it. He said he kept telling hospital staff, but they ignored him.

“Nobody (was) telling me anything at all,” Taylor said. “I could not get any information from anybody. They seemed like they just wanted to keep it very quiet.”

Taylor weighed 300 pounds before he got sick. He lost 40 pounds,but had little strength. Staff had to help  carry to the restroom. Taylor said staff wouldn't let him use the toilet.

“They said, ‘That’s what we do here, we change sheets. You just go the bathroom in bed and we’ll clean you up later.’ That is absolutely asinine in my opinion,” he said.

Taylor said he got almost no physical therapy in the weeks he spent at Kindred. He said the wound became so bad he couldn't sit. Taylor said a physical therapist there told him they weren't set up to handle someone of his size.

David's wife Marsha Taylor said the wound kept getting bigger and staff did nothing.

“It was so big and I was not exaggerating,” she said. “We had a new grandson that week. I know I could have fit that little baby inside that wound.”

The wound became infected and that put him back in Carle BroMenn Medical Center in Normal for surgery.

Kindred Hospital CEO Christopher Curry said the hospital can’t comment on the specifics of any patient’s case, but said in a statement to WGLT: “We take seriously any issues brought to our attention and work with patients and families to address their concerns. Regarding COVID-19, Kindred Hospital Peoria is taking all appropriate actions and following CDC guidelines in order to protect the health and safety of our patients, employees and visitors in response to the pandemic.”

After all that, David Taylor said he looked for an attorney to sue Kindred Hospital for malpractice. He said nobody would touch it because of the governor's order providing legal immunity to health care providers during the pandemic.

“The lady when she called me to turn it down said, ‘Normally we would be all over this, but because of (the executive order) we’re turning you down,” Taylor said. “I said OK.”

Fewer lawsuits

Some personal injury attorneys say they haven't taken any malpractice cases since the governor's executive order because they don't stand a chance.

“Health care providers obviously need to be focused on providing the care they need to provide to infected patients as opposed to worrying about subsequent lawsuits,” said Jim Ginzkey, a personal injury lawyer in Bloomington. “I understand quite frankly.”

The governor's order expired in June. The federal government offers limited immunity through what's called the PREP Act. It applies only to countermeasures a facility takes to address COVID. Volunteer health care workers have some liability protections under Good Samaritan laws.

Bob Panton is president of the Illinois State Medical Society. He said he wished the governor had extended the executive order further, even though most hospitals now have a manageable number of patients.

“The state medical society is appreciative of the liability protection that was provided in those months,” Panton said. “We certainly think some of the conditions still exist.”

Panton said the executive order particularly helped hospitals convince retired medical workers to come back to serve. Retirees typically don't keep liability coverage.

'Gross negligence'

Not all malpractice filings have stopped. Some attorneys say they are busier now than a year ago in spite of the governor's order.

Megan Shore is a Chicago attorney that specializes in malpractice cases, particularly involving nursing homes.

“That does not scare us,” Shore declared.

Shore's firm filed a wrongful death lawsuit against a Bloomington nursing home and rehab facility over a resident who died of COVID.

Shore said state and federal laws don't protect medical providers who show gross negligence or willful misconduct. She said she's seen that far more often in nursing homes. She said many are chronically understaffed.

“We don’t think that nursing homes should get away with this and use COVID as an excuse not to provide care. I’m seeing it all over,” Shore said.

Ginzkey believes some cases in which COVID patients suffered organ damage will likely go forward.

He said the bigger injustice COVID has caused is the effective closure of civil courts for a year. There's now a logjam of cases. Ginzkey said civil cases that would usually take a year or two to go to trial may take three to four years. And he said that often helps defendants run out the clock.

“We have had cases over the years where we have had to throw in the towel because a critical witness died. The longer the delay, the greater the chance you are going to lose critical evidence,” Ginzkey said.

David Taylor still has photographic evidence of how badly his body was damaged from the alleged neglect he suffered at Kindred. Taylor said he also took his case to the Illinois Department of Public Health. Taylor said the agency told him since he was no longer at Kindred, there wasn't much they could do for him. The 61-year-old Taylor is on disability from his job in office technology. He tries to see the bright side in all this.

“Life goes on. You have to think that way. I’m alive. I survived it,” Taylor said.

Taylor said he survived because his wife got him out of Kindred. He said he still had a lot of health problems. He has limited lung capacity. He struggles with balance. And he can barely lift his left leg.

Taylor said he's not sure how much of that is because of COVID or the level of care he received.

Illinoisans who win personal injury and wrongful deaths lawsuits could soon get higher payouts in verdicts. The state legislature approved a bill last week to tack on interest to the payment amount -- from the time the lawsuit is filed, rather than after the verdict.

The measure awaits the governor's signature.

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Eric Stock is the News Director at WGLT. You can contact Eric at ejstoc1@ilstu.edu.