Long-term care providers prepare to fend off lawsuits tied to COVID-19 pandemic

Long-term care providers and their lawyers are preparing to defend the industry against claims of neglect and wrongful death of residents as lawsuits related to the COVID-19 pandemic start being filed nationwide.

While plaintiff lawyers say residents are being neglected, defense lawyers say long-term care providers have been working hard to follow changing regulations on testing, personal protective equipment and infection control during a global pandemic that targets the elderly and puts intense pressures on healthcare providers.

On both sides, lawyers are preparing to argue cases where the rules are still being determined.

“It’s not very often that you’re on the cusp of an entirely new cause of action,” said Rachel Stahle, a nursing home abuse and neglect attorney and a partner at Dollar Burns & Becker, a law firm based in Kansas City, Mo.

Long-term care resident deaths represent roughly 40% of the COVID-19 deaths in the country. In nursing homes alone, there have been 112,383 deaths and 570,626 COVID-19 cases through Jan. 17, according to the latest statistics from the Centers for Disease Control and Prevention.

“I think whenever you have those kinds of statistics, it’s just going to prompt a heavy level of scrutiny,” said Jim Boswell, a partner and leader of the national healthcare team for King & Spalding, who represents long-term care facilities. “That’s just a reality that makes this unlike anything else this industry has faced.”

A COVID-19 complaint tracking tool maintained by law firm Hunton Andrews Kurth shows there are more than 8,000 COVID-19-related lawsuits across the country, not limited to healthcare, ranging from wrongful death cases to wrongful termination claims and insurance disputes. Bonnie Richardson, a partner at Richardson Wright, a law firm in Portland, Ore., said there are only about 170 cases involving COVID-19 in long-term care that have activity right now, and many of those include claims related to voting access tied to the elections.

“Across the nation, there are not really that many that have been filed, considering all of the people who have died,” said Richardson, who represents residents and their families.

Anna Idelevich, an attorney at Weinberg Wheeler Hudgins Gunn & Dial in Atlanta who represents long-term care providers, said, “This is really the beginning of the lawsuits.”

The statute of limitations for personal injury lawsuits ranges from two to four years, depending on the state, and pandemic-related long-term care lawsuits are just starting to be filed.

Long-term care facilities have some protections when it comes to pandemic-era lawsuits, lawyers say. Many states have passed civil immunity laws that protect businesses from COVID-19-related litigation, except in cases of willful, reckless, intentional or grossly negligent misconduct.

“They don’t completely get rid of the opportunity for a plaintiff to sue; they just make it a lot harder,” Idelevich said. “We’re seeing creative lawyers try to get around all of these immunity statutes that are coming out from all of the states.”

There is also the possibility that plaintiffs who successfully challenge immunity in one state could create a domino effect across the country. “It would create enough media buzz around it that I think you’d start seeing copycat lawsuits,” Idelevich said.

Defense lawyers are also claiming the Public Readiness and Emergency Preparedness Act, known as the PREP Act, which offers immunity to liability for COVID-19 countermeasures, covers all COVID-19 lawsuits at long-term care facilities, but courts so far have disagreed, Stahle said. In those cases, lawsuits that were sent to federal court were remanded back to state courts.

“It’s all in flux,” she said.

Trying to obtain immunity through the PREP Act puts cases “in limbo” and delays the process for getting families answers, Richardson said.

Families “want to hold the nursing home accountable for what errors and mistakes they’ve caused. They also want to know what happened,” Richardson said.

Because long-term care facilities have been closed to visitors to prevent the spread of COVID, family members are not able see their loved ones and often aren’t able to intervene until things seem severe, Stahle said. In Missouri, where Stahle practices, calls to the state’s elder abuse hotline are down from the previous year.

Never in her career has Stahle seen so many severe lawsuits involving nursing homes than in the past year. Her firm alone is handling fatal cases unrelated to COVID-19 where a resident allegedly drowned in the bathtub, a resident’s wound became infested with maggots and a resident died from extreme dehydration.

“We are seeing neglect like never before,” Stahle said. “You’re getting these severe cases all at the same time.”

The American Health Care Association and National Center for Assisted Living and some of its state affiliates have “advocated for reasonable, limited liability protections that defend staff and providers for their good faith efforts during this challenging time.”

“We understand that loved ones are grieving and looking for answers, but this is a vicious virus and an unprecedented public health crisis,” AHCA/NCAL said in a prepared statement. “Caregivers are doing everything they can, often with limited resources and ever-changing information. Providers or individual healthcare workers who were following government guidance should not be held responsible for their good faith efforts during this once-in-a-century pandemic.

“Long term care providers are already facing a financial crisis due to COVID. Compounded with an excessive litigation environment, thousands of long-term care facilities would be forced to close their doors, in turn, displacing tens of thousands of vulnerable residents and limiting access to critical services for our nation’s seniors.”

While private lawsuits are “a huge concern,” they aren’t the only challenge facing long-term care facilities, Boswell said. “Healthcare providers in this space have several legal hurdles facing them.”

Government regulation and scrutiny led to penalties assessed against providers for infection-control violations, and some federal and state agencies have started investigating providers.

The U.S. House of Representatives’ Select Subcommittee on the Coronavirus Crisis in June launched an investigation into the nursing home response to the COVID-19 pandemic, sending letters to five of the nation’s largest for-profit skilled-nursing companies: Genesis HealthCare, Life Care Centers of America, Ensign Group, SavaSeniorCare and Consulate Health Care.

In response to an inquiry from Modern Healthcare on the congressional investigation, Life Care Centers of America said, “We are cooperating with the House Select Subcommittee on the Coronavirus Crisis and have voluntarily responded to requests.”

SavaSeniorCare likewise said the company is currently cooperating with the Congressional Select Subcommittee on the Coronavirus Crisis regarding their requests. “We appreciate the Select Subcommittee’s interest in the actions of healthcare providers as we face one of the worse pandemics in the world’s history.” A SavaSeniorCare spokesperson said the organization has focused first on patient safety and has tried to balance sometimes conflicting guidance from local, state and federal authorities in its COVID-19 response.

Genesis HealthCare, Ensign Group and Consulate Health Care did not respond to requests for comment.

One of the unknowns in determining how cases involving long-term care providers will proceed involves public perception, Idelevich said. While much of the nation lauds healthcare workers as heroes, there “is a bit of a double standard with nursing homes,” she said.

“In a lot of people’s minds, COVID started in a nursing home,” Idelevich said.

Life Care Center of Kirkland (Wash.), which is owned by Life Care Centers of America, had the first reported COVID-19 outbreak in the country. More than a quarter of the facility’s residents died, and many more tested positive for COVID-19.

To get ahead of potential lawsuits, Idelevich recommends administrators communicate better with residents’ families because “secrecy breeds misinformation.” Families will feel more connected and will get more insight into the challenges facing providers. She also said facilities should “leave a paper trail” by documenting precisely how they responded to new regulations and what new policies were put in place. Finally, she recommends communicating with the media instead of saying “No comment,” although she admits that’s probably not the most popular advice.

Even simple statements reiterating that the facility cares about its residents and is trying to get to the bottom of the issues “goes a long way” and can help sway jurors later if a case goes to trial, Idelevich said.

“I understand that a statement from the company is an admission later in trial or later in a case; I understand the effect of that,” she said. “You still have to balance the fact that a ‘no comment’ or silence is deadly. You’ve already lost the case. You’ve already poisoned the pool.”