Law Precludes Family’s Lawsuit: Marilyn Hawkinson was living with her daughter, Carol Monnens, when she became paralyzed from the waist down as a result of Guillain-Barre Syndrome that may have been a reaction to the COVID-19 vaccine. Her family placed her in Wilmot Care Center, a South Dakota nursing home, until a CT scan could be completed.
Hawkinson was admitted to Wilmot Care Center on January 6, 2022 and was sent home a month later, with a bed sore on her tailbone. The family was not advised about the bed sore until the time of discharge. Her daughter describes that the bed sore she observed “had eaten all the way through. Her spine was bare.”
Hawkinson’s family reportedly installed a camera in her nursing home room so that they could communicate with her and to make sure she was receiving proper care. The family reportedly stated that they rarely saw the nursing home staff turn Hawkinson.
Hawkinson died a few days after she arrived back home, the day after she turned 87. The official cause of death was listed as heart failure but her family believes it was caused by the bed sore due to inadequate care at the Wilmot Care Center.
However, a South Dakota law prevents a lawsuit. South Dakota House Bill 1046, which Governor Kristi Noem signed into law in February 2021, shields health care providers from lawsuits regarding COVID-19 patients. Because Hawkinson had been admitted for a possible COVID-related issue and had contracted COVID-19 during her stay at the Wilmot Care Center, her family cannot file a lawsuit against the nursing home.
21-68-4. Limitation–Actions–Health care provider.
A health care provider is not liable for any damages for causing or contributing, directly or indirectly, to the death or injury of a person as a result of the health care provider’s acts or omissions in response to COVID-19. This section applies to all of the following:
(1) Injury or death resulting from screening, assessing, diagnosing, caring for, or treating persons with a suspected or confirmed case of COVID-19;
(2) Prescribing, administering, or dispensing a pharmaceutical for off-label use to treat a patient with a suspected or confirmed case of COVID-19; and
(3) Acts or omissions while providing health care to persons unrelated to COVID-19 if those acts or omissions support the state’s response to COVID-19, including any of the following:
(a) Delaying or canceling nonurgent or elective dental, medical, or surgical procedures, or altering the diagnosis or treatment of a person in response to any federal or state statute, regulation, order, or public health guidance;
(b) Diagnosing or treating patients outside the normal scope of the health care provider’s license or practice;
(c) Using medical devices, equipment, or supplies outside of their normal use for the provision of health care, including using or modifying medical devices, equipment, or supplies for an unapproved use;
(d) Conducting tests or providing treatment to any person outside the premises of a health care facility;
(e) Acts or omissions undertaken by a health care provider because of a lack of staffing, facilities, medical devices, equipment, supplies, or other resources attributable to COVID-19 that renders the health care provider unable to provide the level or manner of care to any person that otherwise would have been required in the absence of COVID-19; and
(f) Acts or omissions undertaken by a health care provider relating to the use or nonuse of personal protective equipment.
This section does not relieve any person of liability for civil damages for any act or omission that constitutes recklessness or willful misconduct.
If you or a loved one may have been injured (or worse) as a result of medical malpractice in a nursing home in South Dakota or in another U.S. state, you should promptly find a South Dakota medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your nursing home medical malpractice claim for you and represent you or your loved one in a nursing home medical malpractice case, if appropriate.
Click here to visit our website or call us toll-free in the United States at 800-295-3959 to find nursing home claim attorneys in your state who may assist you.
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