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 Post Pandemic Litigation For Skilled Care And Assisted Living Facilities

 

 

Of all of the industries affected by the COVID-19 pandemic, nursing centers and assisted living facilities are likely to face the greatest number of personal and litigation consequences. Not only are the elderly and immunocompromised at the highest risk for severe illness from the novel coronavirus, but nursing facilities, by their very nature, involve close contact with others on a day to day basis. The Centers for Disease Control estimate that in 2016, there were more than 15,000 nursing homes in the United States and 1.7 million licensed beds, housing 1.3 million residents. According to statistics from the Foundation for Research on Equal Opportunity, nursing centers and assisted living facilities account for 40 percent in all COVID-19 related deaths. 

Litigation against facilities has already begun. A suburban Chicago nursing home is facing several suits, as more than two thirds of their 91 residents and more than 36 of the workers were infected with the virus. About 25 residents died from the virus or related complications in that facility alone. The suit alleges that the facility was grossly negligent by failing to follow guidance from public health officials to screen residents and staff, failing to have adequate supplies of protective equipment and failing to isolate residents with symptoms. A flood of litigation could sink an already troubled industry, where staff turnover and shortages are common and facilities often operate on thin margins. 

What Facilities Should Do 


The outbreak of the COVID-19 pandemic was swift and caught many industries off guard, including health care facilities. Unfortunately, shortages of many items such as N95 masks and other protective gear contributed to the rapid spread of the disease. The CDC, in addition to their normal infection prevention recommendations issued additional guidance specifically related to COVID-19. 

As much as feasible, facilities should adhere strictly to those guidelines, including assigning one or more individuals with infection control training to manage the facility’s infection control response, implementation of a plan for the testing of both staff and residents, require anyone with symptoms to be quarantined, regular monitoring of staff and residents for fevers, use personal protective equipment (PPE) as available and have a plan to track who a potentially infected worker came in contact with in the days before symptoms arose. 

Probably the most important part, however, is the documentation of the facility’s response. Many states have statutes of limitation that run for several years after an incident, so a facility may not face a lawsuit until two or three years from the death of the resident. At that point, it will be crucial for the facility to respond to discovery requests and other court mandated filings in a meaningful way to show that it took reasonable steps to protect its staff and residents despite the lack of information early on in the pandemic and the lack of access to PPE. 

Keeping digital copies of records reflecting ramped-up patient care and worker testing and evaluation, communications to family members and other correspondence or memos reflecting attempts to purchase additional PPE, if it was unavailable, will be crucial to mounting a defense. It is also a good idea to increase communication to family members about steps that the facility is taking, and to respond thoroughly and promptly to complaints from family members of residents. The more the facility can do to assuage anxious families, the less likely it is that a suit will be filed. 

Other tips for interacting with families include using laptops or smart devices with cameras so that families can see and communicate with their loved one, real-time reporting of events and updates via email blasts, text messages or similar mediums, and having one or more persons dedicated to communicating with families about virus-related concerns. 

Having a dedicated, trained individual be the “go-to” person for families to call not only gives families some degree of comfort, it ensures that the facility’s message is consistently communicated. Those kinds of “soft” responses often go a long way. For example, it is very easy for anxious family members to assume that a facility is not doing everything for their loved one when the family is cut off from communication and feels frustrated by the lack of information. Family members may start to think that the facility is hiding something, and that only leads to more inquiries and ultimately, litigation. 

Legal Protections on the Horizon


Several industry-related groups are leading state lobbying efforts to protect nursing centers and other long term care facilities from liability from COVD-19 related suits. The federal government has provided some legal protections for other health care entities but has not specifically included nursing centers. Some states have already enacted lawsuit protection for the facilities, though the terms and protections vary. States that have enacted lawsuit protection include Alabama, Arizona, Connecticut, Georgia, Illinois, Kentucky, Massachusetts, Michigan, Mississippi, New Jersey, New York, Nevada, Rhode Island, Vermont and Wisconsin. 

Most of these protections include immunity for ordinary negligence, but not for gross negligence or recklessness, but also specifically mention immunity for actions taken as a result of staffing or supply shortages. Protection from ordinary negligence suits, however, will not stop suits from being filed, as the determination of gross negligence vs. ordinary negligence is typically one that does not occur at the outset of a suit. Often, the decision is made by a judge after discovery has taken place, or by a jury at trial. Therefore, even though there may ultimately be immunity provisions in place, facilities and insurers will still face legal costs in defending suits where gross negligence is alleged. Those costs can be in the tens of thousands per case, causing increased insurance premiums and clogging court dockets for years to come. 

Kelli Sullivan is a shareholder at Turner Padget. Having been on all three sides of the litigation equation she brings a wealth of experience to her clients in the areas of insurance coverage, medical malpractice/licensing and nursing home defense. Kelli can be reached at ksullivan@turnerpadget.com or (803)227-4321. 

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