Donald J. Fann, lawyer for Kelley Uustal

Nursing homes and hospitals are facing a problem.

They say they want to treat their residents and patients amid the coronavirus pandemic but don't want to be liable for inadvertent harm during the global viral outbreak.

In a letter to Gov. Ron DeSantis, the Florida Health Care Association asked for "sovereign immunity" to be extended to health care professionals and facilities while they attend in good faith to patients amid the coronavirus outbreak.

This could apply if the nursing home does not have enough ventilators to care for its residents, so the companies are asking for protection as they care for a high-risk population .

Their request excludes any intentional criminal misconduct, gross negligence, reckless misconduct or intentional infliction of harm.

'That's for a jury to decide'

Representatives from the governor's office did not immediately respond to request for comment, but opponents hope the governor declines.

Donald J. Fann, an attorney at Kelley Uustal, said the request is not fair to people who have potential claims against nursing homes or hospitals.

"They were smart enough to say, 'Gross negligence, we got it. Reckless conduct, we got it. Sue us for that,' " Fann said. "They still need to follow their policies. They need to do what they have always done. If they have proved they have done all those things and it happened anyway, that's for a jury to decide if they've done what's responsible. There is no basis that I can see for any of the relief they're seeking."

Fann points out that nursing homes, for instance, are often cited for infection-control deficiencies. By having the state extend sovereign immunity to these business, Fann worries that a nursing home could cite the coronavirus for the death of a resident, when in fact, the death happened because of substandard health care that the company failed to correct. He said nursing homes should not "automatically get a pass on things they should have been doing."

However, the Florida Health Care Association says it is more complicated than that.

The group said its member nursing homes and hospitals are working under "challenging circumstances" to ensure resident and patient safety.

"We have been working to identify ways to ease the massive challenges these dedicated long-term care professionals faces [sic] on the front lines every day,"  the association said. "Nursing homes have acted on those things we can control, such as limiting visitation early on in this pandemic and actually ahead of social-distancing containment measures implemented in many larger communities. Long-term caregivers are putting their lives on the line every day for their residents."

The companies serve tens of thousands of patients. In 2017, for instance, Florida nursing housed close to 73,000 residents, according to Kaiser Health News. About 17% of these residents have underlying respiratory issues, putting them at greater risk of dying if they contract COVID-19, Kaiser Health reported. Health officials say severe respiratory illness is a common symptom of a coronavirus infection. And insufficient equipment, like ventilators, could increase the number of deaths.

The Florida Health Care Association acknowledged the issue, citing limited equipment and tests as a potential problem.

"Meanwhile, our long-term care facilities continue to desperately seek the resources that will help them battle this virus, including personal protective equipment to ensure caregiver safety at work, and proper testing to help identify providers who are in most need," the  association said in an email. "In the midst of this unprecedented crisis, long-term caregivers should be able to direct their skills and attention to helping individuals who need them, and not have to worry about being sued for making tough decisions while trying to comply with government directives."