Attorney General Gordon MacDonald is seated at right during the Executive Council's public hearing on his failed nomination to be the chief justice of the New Hampshire Supreme Court in this file photo taken June 26, 2019. Garry Rayno photo

CONCORD – Attorney General Gordon MacDonald issued a little-known opinion that says hospitals, nursing homes and other residential care facilities have the same immunity from lawsuits the state is entitled to as long as they comply with Gov. Chris Sununu’s emergency declaration.

MacDonald’s April 22 opinion was responding to questions posed about immunity by Health and Human Services Commissioner Lori Shibinette.

“Yes, the immunity provision of RSA 21-PP:41 applies to health facilities, and their employees and volunteers, that engage in emergency management activities, and their employees and volunteers, that engage in emergency management activities so long as the health facility and its employee or volunteer was complying with or reasonably attempting to comply with applicable state of emergency orders or rules,” MacDonald wrote.

An opinion by the attorney general is considered the law unless otherwise overturned, according to Associate Attorney General Anne Edwards. The specific immunities referred to are for non-state actors when doing emergency management activities, Edwards said.

Heightened attention has been focused on long-term care facilities because 82.4 percent of all 256 COVID-19 deaths in New Hampshire were connected to such facilities, raising concern about potential lawsuits.

The issue of immunity from lawsuits has also been raised for businesses by the Business and Industry Association as Sununu reopens more of the state’s economy.

MacDonald also wrote an opinion on Workers Compensation responding to the BIA that said essentially that workers would have to prove they contracted COVID-19 at work to be eligible.

Neither opinion was issued as a press release or as an emergency order, but both are available on the Department of Justice’s website under the pulldown “Public Documents,” then click on “Opinions.”

Sununu’s spokesman Ben Vihstadt didn’t return emailed questions about the opinions.

Sununu did issue an emergency order to ensure that first responders exposed to COVID-19 would be “presumed” to have contracted it on the job and be eligible for Workers’ Compensation, Edwards said.

But not so for the average worker, according to MacDonald’s opinion.

“Generally in order to receive Workers’ Compensation for an illness by claiming (you got) an illness at work, you have to be able to show your job puts you at a higher risk and that is something that is often hard to prove,” Edwards said.

David Creer, BIA’s director of public policy, said MacDonald’s opinion only deals with employees. But businesses, especially small businesses, are concerned about the possibility of customers filing lawsuits claiming they got COVID-19 at the business.

Even if that would be unlikely and very hard to prove, the cost to a small business to respond to even a frivolous lawsuit could be devastating, he said.

“We’re not asking for complete immunity,” Creer said. The BIA wants more protection for businesses that are following the guidelines, not for businesses that are “grossly negligent or reckless,” he said.

David Juvet, senior vice president of public policy for the BIA, said a working group is hoping to either get a rule change to submit a late bill or find existing legislation to write an amendment to provide some safe harbor protection for businesses that make good faith efforts to comply with federal and state health and safety guidelines.

The BIA also asked Sununu for an emergency order providing immunity, but he has yet to do so.

Leslie Nixon, a well-known personal injury lawyer in Manchester, said she was generally aware that there was immunity for people acting in emergency situations – typically referred to as “Good Samaritan laws,” but had not heard of the attorney general’s opinions regarding nursing home immunity.

“In this case the line would be blurry, but I would think that it would not apply simply to treatment of a patient who was in a nursing home for some other condition than Covid-19 and got it because recommended safety measures were not taken (such as staff not wearing masks). The difficulty in all these cases would be proving exactly how the patient became infected,” Nixon said.

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