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COVID-19 and Nursing Home Litigation

Nursing homes, skilled nursing facilities, and assisted living facilities (collectively known as long-term care facilities or “LTCFs”) provide a variety of services, both medical and personal care, to people who are unable to manage independently in the community. Over 4 million Americans are admitted to or reside in nursing homes and skilled nursing facilities each year and nearly one million persons reside in assisted living facilities. Georgia has more than 33,0000 nursing home residents.

Due to age and health related issues, COVID-19 has had a devastating and exponential impact on the elderly. Nursing homes and other LTCFs have been hit particularly hard.  On April 19, 2020 the New York Times reported that 70 residents of a 543 bed nursing home in Andover N.J. died from complications related to COVID-19.  The following day it was reported that a Brooklyn NY nursing home was ravaged by 55 COVID-19 related deaths.  Fear and outrage in Florida led to a threatened lawsuit, which resulted in the public release of information regarding the identity of each nursing home in the state that has reported a confirmed case.  In the U.S., it is estimated that over 7300 COVID-19 related deaths are, tragically, attributed to nursing home or assisted living residents.  The Georgia Department of Community Health  reports that at least 250 COVID-19 related deaths in Georgia were nursing home residents.

These somber facts, coupled with families’ inability to visit their loved ones or get prompt responses to questions due to shelter in place and quarantine orders, results in fear, confusion and numerous difficult questions about surviving family members’ rights.  At Fried & Bonder, we are assisting clients with their questions concerning fault, liability, negligence, immunity from suit and rights of surviving family members.

The fact is, our elderly population is vulnerable.  They get sick and, sadly, they pass away.  At Fried & Bonder, we established critical evaluative criteria for potential COVID-19 issues such as:  was the care giver properly on notice (or should they have been) of the risk that COVID-19 posed to the resident?  Did the care giver act appropriately in response to this notice?  Was COVID-19 the cause of injury or death?  Of course, each case is entirely different from another.  But a few key facts help answer some questions.

Notice First, because of their mission and receipt of Medicare and Medicaid, LTCFs are the second most regulated industry in the US.  Federal regulations that govern LTCFs are numbered using a system called “F-Tags.”   F-Tags are used by each state department of health and The Department of Health and Human Services Centers for Medicare and Medicaid Services  (“CMS”) to instruct and survey the quality of care provided to residents in LTCFs.  On March 4, 2020, CMS put out its first F-Tag related to COVID-19 – part of their regulations related to infection and control programs.   These regulations were updated on March 13, 2020.  On April 2, 2020, both the Center for Disease Control (“CDC”) and CMS issued renewed guidance on key recommendations for nursing homes and other LTCFs in dealing with COVID-19 risks.

Issuance of the regulations are important because, in both practical and legal terms, they may establish a level of notice to the facility.

Initially, regulations primarily dealt with restricting access to LTCFs in an effort to stem the spread of the virus.  As early as March 13, 2020, facilities were instructed to restrict visitation of all visitors and non-essential healthcare personnel, except for certain compassionate care situations, such as end-of-life.  For anyone entering or visiting facilities, LTCFs were instructed to require hand hygiene and use of Personal Protective Equipment (“PPE”).   Persons exhibiting any symptoms of respiratory infection (fever, cough, shortness of breath or sore throat) were strictly prohibited from access.

Subsequent guidelines instructed nursing homes to immediately implement symptom screening and temperature checks for all staff, residents and visitors; dedicate separate space to care for residents with confirmed COVID-19; and to follow guidelines with respect to transferring critical cases out to hospitals and readmitting these residents back into the facility.

Because LTCFs are expected to read and implement these regulations, compliance with visitor restriction regulations and other protocol – and how such compliance helped or hurt the spread of the virus – will be an important fact to review.

Lawsuits Against Nursing Homes for COVID-19 Related Deaths.  At the date of this publication, Fried & Bonder is aware of at least one lawsuit (filed in North Carolina) against a nursing home for a COVID-19 related death.  We expect more as many LTCFs were understaffed and unprepared for the extra care a pandemic would require.   As a result, we continue to study the nuances of potential COVID-19 related litigation, including the many obstacles.

For example, because LTCF’s are regulated by state and federal governments, they can also be heavily fined for non-compliance with issued regulations.  Although governmental fines are not currently a bar to liability, it may ultimately become a bar as a result of future federal and state legislation protecting these facilities from COVID-19 related claims, similar to legislation being rolled out now to protect first responders.

Nevertheless, assuming LTCFs are not protected, an action for a COVID-19 related death would likely arise as a claim for negligence.  The issues of proof in such a negligence claim will be complicated, with hurdles ranging from establishing Notice of the risks to non-compliance with regulations to medical causation.  For example, assuming Notice, did the facility properly restrict or test visitors?  Did the nursing home or other LTCF have in place a proper and compliant infection control program?  In the medical malpractice setting, questions often arise regarding the responsibilities of a Registered Nurse (“RN”) versus a Licensed Practical Nurse (“LPN”).  RNs and LPNs have similar roles, but in certain circumstances, care may only legally be rendered by an RN. So, if the nursing home or LTCF is using RNs and LPNs interchangeably, and inappropriately, and the care leads to a COVID-19 related death, there may be a liability issue for the facility.

Finally, and perhaps most daunting, will be questions of medical causation—did a violation by the LTCF of the applicable standard of care lead to a COVID-19 infection that caused the patient’s death and, even if so, can the COVID-19 exposure be attributed to the LTCFs negligence, as opposed to some other cause?  The causal connection must be provable between the violation of the standard of care and the harm, which will likely be a complicated task in LTCF cases.

The unfortunate fact is that our elderly population, particularly those who can no longer care for themselves, get sick and suffer myriad health problems.   Statistics show that those who succumb to COVID-19 overwhelmingly suffer from an underlying health condition.  So, determining the root or substantial cause of death will be complicated.  Moreover, pre-existing medical conditions, age, and other infirmities will certainly make proof of liability complex.

Fried & Bonder reviews, litigates and resolves complicated injury and negligence cases every day.  Our experience with these complex issues in the past guides us, makes us more efficient, and gives us a more critical eye with every new case.    If a loved one has been affected by COVID-19 in a nursing home or other LTCF, and you have questions, we are here to listen compassionately and answer those questions.  Please do not hesitate to contact us.

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