Nursing Homes and COVID-19: Immunity Orders vs. Accountability in Maryland
The pandemic has been cruelest to the people least able to protect themselves. Maryland's nursing homes and assisted living facilities have been the site of some of the state's worst outbreaks, and families locked out by visitation bans have spent months wondering what is happening behind closed doors — and who will answer for it.
The industry has an answer ready: immunity. Since the earliest weeks of the emergency, long-term-care operators have pointed to Maryland's catastrophic health emergency law as a shield against lawsuits. Families deserve to know what that shield actually covers — and, just as important, what it does not.
Where the immunity comes from
Maryland did not pass a new nursing-home immunity statute this year. The protection operators invoke is older: Md. Code, Public Safety § 14-3A-06, part of the catastrophic health emergency framework enacted after 9/11 and the anthrax attacks. It provides that a health care provider is immune from civil or criminal liability if the provider acts in good faith and under a catastrophic health emergency proclamation.
Governor Hogan issued exactly such a proclamation on March 5, 2020, and has renewed it as the emergency continued. His orders and the Maryland Department of Health's directives — which mandate infection-control measures, testing, and reporting in nursing homes — are the "proclamation" framework under which providers now claim protection. Separately, the federal PREP Act provides immunity for claims arising from the use of covered countermeasures such as tests and protective equipment.
What the immunity covers — and what it doesn't
Read the statute's two conditions carefully, because each one has real teeth:
| Likely within the immunity | Likely outside the immunity |
|---|---|
| Good-faith COVID-19 response undertaken pursuant to the Governor's and MDH's emergency orders — surge staffing decisions, resource allocation, compliance with mandated protocols | Ordinary neglect unrelated to the emergency response: falls, pressure sores, dehydration, malnutrition, medication errors |
| Care shaped by emergency directives (visitation restrictions, cohorting, mandated testing) | Conduct not in good faith — including concealing outbreaks from families and regulators |
| Use of covered countermeasures (PREP Act) | Chronic understaffing and corner-cutting that predate the pandemic |
Notice also what the General Assembly has not done: unlike some states that rushed through sweeping new COVID-19 liability shields for long-term-care operators this year, Maryland's legislature has passed no such statute. The protection is the existing emergency framework, with its existing conditions — and industry lobbying for something broader should be watched closely by every family with a loved one in care.
The key phrase is under a catastrophic health emergency proclamation. Routine care for a resident's routine needs is not rendered "under" the proclamation just because a pandemic is happening outside. A resident who develops preventable pressure wounds because no one turned her, or who wanders unsupervised and falls, has not been injured by the state's COVID-19 response — she has been injured by the same neglect that harmed residents in 2019, and the immunity statute does not speak to it. And a facility that acted in bad faith — hiding infections, falsifying records, ignoring its own mandated protocols — fails the statute's first condition entirely.
The accountability side of the ledger
The same emergency orders the industry cites as a shield also created obligations. Maryland's directives require nursing homes to implement infection-control protocols, test residents and staff, and report outbreak data. A facility that failed to follow the very orders it invokes will have a difficult time claiming it acted "under" them. Families should also know that regulatory complaints remain available: the Office of Health Care Quality continues to investigate, and complaint records become evidence.
What this means for injured people in Maryland
- Do not accept "COVID immunity" as the end of the conversation. It is a defense with conditions, not a blanket amnesty — and whether it applies to your family's facts is a legal question, not the facility's press release.
- Document everything now. Note your window visits and video calls, save every email and portal message, request the medical chart in writing, and photograph your loved one's condition whenever you can.
- Watch the deadlines. Maryland's courts tolled filing deadlines while closed this spring, but that tolling has ended; limitations clocks are running again. Wrongful death and neglect claims have firm time limits.
- Distinguish the claims. A death from COVID-19 despite a good-faith response is a different case from a death by dehydration during a lockdown. Families are entitled to the records that reveal which one happened.
The emergency has demanded real sacrifice from honest caregivers, and the law rightly protects good-faith crisis decisions. It does not exist to launder years of understaffing into unaccountability. We intend to hold that line.
If you or a loved one has been hurt, call Posey Lebowitz at (202) 524-0123 or send us a message for a free consultation.
Part of our DMV case law archive, compiled in 2026 to reflect the archive of some of the most important decisions in injury law.
Update: Maryland's appellate courts later construed this immunity in Smith v. Upper Chesapeake Medical Center (Appellate Court of Maryland, May 2026), holding that § 14-3A-06 applies to care provided in good faith in response to the emergency proclamation and is not limited to treatment of the illness underlying the proclamation — a broader reading of the immunity than the contemporaneous analyses discussed in this post.