Butch Burgin was active in his retirement. His family said he liked to be outdoors as often as he could. That is, until he was diagnosed with Alzheimer’s disease over 3 years ago. Butch still wanted to be outdoors, but he was simply walking when his legs gave out. His family had no choice but to seek out a skilled nursing facility. A little over 2 months later, he passed away.
His family says the death didn’t need to happen and has filed suit. The Butch Burgin lawsuit is more than just another wrongful death legal action. There are underlying disputes over how far immunity might go in the COVID-19 era.
It was the Friday of Labor Day weekend that the Burgin family brought Butch to Owen Valley Health Center in Martinsville, IN. By October, the facility had undergone a lockdown due to a staff member’s positive test for COVID-19. Butch’s family couldn’t see him for 3 weeks. Then they got a call saying that he didn’t want to get out of bed or eat. It was so unlike Butch that alarm bells went off in the Burgin family.
The Burgins decided to bring Butch home. They were shocked at what they saw when they got to Owen on November 10. Butch was dehydrated with a broken nose, broken teeth and an ulcer that ran to his tailbone. “We had no idea what was going there for the last three weeks for him to go from behind a healthy, mobile individual to being at death’s door,” Burgin’s son Kenneth Jr. said. “It doesn’t compute.”
Butch only spent 1 day at home before passing away. The family wants answers. Ashley Hadler, their attorney, filed the wrongful death lawsuit. “As a result of their failure to provide appropriate care to him, he suffered from dehydration, malnutrition, facial fractures, injuries, contusions…and deterioration of pressure sores in a very short period of time,” Hadler said.
This lawsuit comes at the same time a bill is moving through the Indiana state legislature that would strengthen immunity protections for businesses being sued for COVID-19 related deaths. The bill would be retroactive to February 2020, meaning that the Burgin lawsuit—potentially—could be disqualified on those grounds.
But there is considerable question about whether this case would even apply under the proposed legislation. The core question is this—was Burgin’s death related to COVID-19? Hadler says no; Burgin did not die of the coronavirus. The lawsuit deals with a lack of staff and budget to provide adequate care under any circumstances.
The flip side, though, is that it might be argued that it was a positive COVID-19 test that locked down the facility and prevented Burgin’s family from coming in to see him and presumably alerting staff to Butch’s deteriorating condition. The defense might also argue that the overall conditions of COVID-19 have stretched staff and budget at all facilities to the breaking point.
It is, admittedly, a stretch. That’s why the bill’s supporters believe the Burgins, and other families like them, have nothing to worry about. The intent of the legislation is not to provide cover for negligent nursing homes, but to protect businesses who want to reopen without being hit by a flood of COVID-related lawsuits every time a customer tests positive.
Hadler fears that, whatever the intentions of the bill’s sponsors, the actual language within is flawed and is urging legislators to tighten up the bill before sending it to the governor for signature.
“Without having civil litigation to hold someone accountable for following the rules…things will continue to fall through the cracks,” the Burgins’ attorney said. “People who have already been harmed will not be able to get justice.”