COVID-19 Nursing Home Litigation Guide

Since the beginning of the COVID-19 outbreak in the U.S., infections have been reported in over 9,600 nursing homes and “other long-term care facilities.” This has resulted in more than 222,000 confirmed cases and more than 40,000 deaths. Nursing home deaths—including both residents and staff—account for over 40% of all U.S. deaths from coronavirus, which passed the grim 100,000 mark in late May.

State by state, the percentage of deaths from nursing home populations is staggering. In New Jersey, Massachusetts, Pennsylvania, Connecticut, Colorado, Virginia, North Carolina, Rhode Island, Kentucky, Delaware, Oregon, and Vermont, over half of the states’ deaths are linked to elder care facilities. In Minnesota and West Virginia, 80% of state deaths are attributed to nursing homes.

As COVID-19 swept through the country at the start of 2020, Washington state emerged as an early infection epicenter. This was especially true at the Life Care Center, a nursing home in Kirkland, Washington. To date, over 129 coronavirus cases and 37 deaths have been linked to the facility.

In early April 2020, Deborah de los Angeles, whose mother died of coronavirus complications at the Life Care Center, filed a wrongful death lawsuit against the Life Care Center. The lawsuit alleges that despite facility officials knowing that the virus was threatening residents’ respiratory health as early as January, they “lacked a clear plan of action leading to a systemic failure.” The complaint further alleges several instances of negligence by the Life Care Center staff. This includes the center’s failure to report residents’ respiratory symptoms to county medical authorities for 17 days—far past the 24 hour deadline for the county. The complaint also claims that the facility continued to allow visitors, even holding a Mardi Gras party, rather than implementing quarantine protocols.

Other family members of Life Care Center residents have also said that they didn’t receive prompt notification about COVID-19 concerns from facility staff. According to the complaint, de los Angeles didn’t learn about the outbreak within the facility until February 29, despite the facility identifying its first suspected case 10 days earlier. De los Angeles received news of her mother’s illness on March 3 and notification of her mother’s death just 22 hours later.

In New Jersey, long-term care facility, Andover Subacute and Rehabilitation Center, is facing a class action lawsuit after close to 100 of its residents died during the COVID-19. In April 2020, one month before the class action was filed, Andover made headlines when the police received an anonymous tip that the facility was storing a body in a shed outside the home. Police later discovered 17 bodies piled inside a small morgue designed to hold only four people.

In California, a family recently filed a wrongful death suit against Hollywood Premier Healthcare Center after Vincent Martin, 84, passed away from coronavirus complications on April 4, 2020. The complaint further alleges violations of the Elder and Dependent Adult Civil Protection Act, fraudulent concealment, and fraudulent misrepresentation. Martin’s daughter, Kathryn Sessinghaus, claimed that staff she spoke with on her father’s condition were reticent to disclose any information about COVID-19 infections within the facility.

A man in Brooklyn has filed a lawsuit against the Linden Center For Nursing and Rehabilitation for, “failure to take measures to protect” his father, Frederic Dupervil, from COVID-19. The complaint alleges that facility staff failed to take preventative measures for residents or adhere to state or federal guidelines. The Linden Center was previously in the news for resorting to an “overflow room” for dead bodies when morgue capacity was reached.

In North Carolina, a chain of nursing homes has taken an alternative approach to ward off liabilities. Owners of Accordius Health, LLC, which manages 90 nursing homes, have enacted a Trump-era CMS rule which allows nursing homes to require an arbitration agreement as a condition of facility admission. Under this rule, Accordius Health, LLC has requested that the court throw out two lawsuits against the company, “seeking a comprehensive view of the facility’s policies.” The Citadel, a nursing home operated by Accordius Health, has reported 113 COVID-19 cases and 18 related deaths.

In discussing upcoming litigation against the eldercare industry, it’s important to distinguish between assisted living and nursing home facilities. The main distinction lies in the presence or quality of medical care available. Assisted living facilities are designed for residents who are able to live largely independently but may need additional help with some basic daily tasks such as laundry or cooking. Assisted living facilities do need state licensing, however, they’re not governed under the Centers for Medicare and Medicaid Services (CMS). Medicaid may cover partial costs for assisted living, however, only related to medical care received.

In contrast, nursing homes are designed for residents who require frequent, everyday care. Nursing homes also employ licensed medical providers. Residents’ medical care is overseen by a physician and nurses are on call around the clock. In order for nursing homes to receive payment through Medicare and Medicaid programs, they must comply with CMS facility management requirements. This includes requirements for medical services, care plans, and emergency preparedness.

In response to the situation at the Life Care Center Kirkland, CMS launched an inspection of the facility uncovering a number of violations in infection reporting and resident care. On April 2, 2020, CMS issued a $611,000 fine—giving the Life Care Center until September 16, 2020 to correct these errors or lose eligibility in Medicare and Medicaid programs. CMS also released additional guidelines, in partnership with the CDC, for nursing homes to administer “self surveys” of their infection control practices. This guidance also explained that CMS will prioritize onsite inspections of nursing facilities with active cases, focusing on triaging infection control. Standard and revisit inspections were suspended unless they involved the immediate jeopardy of one or more residents.

Shortage of Staff

Nursing homes have been in the news consistently since the early days of the COVID-19 outbreak—largely due to a number of missteps in contagion. One area highlighted by the pandemic is understaffing at eldercare facilities. Nursing home caretakers often work for extremely low wages while conducting severely sensitive work. Under these conditions, nursing homes often see high turnover rates and resort to staffing agencies. In Virginia, the Canterbury Rehabilitation and Healthcare Center faced staff quitting in “droves” as COVID-19 cases began to appear. At the Advantage Living Center in Roseville in Michigan, a federal inspection revealed staff shortages led to an elderly resident not receiving fluids as prescribed. The resident was found in a “deteriorating condition” overnight by a nurse.

Lack of PPE and Testing

Lack of PPE, testing, and lack of contagion protocols have also plagued nursing homes throughout the pandemic. At the Canterbury facility in Virginia, medical director Jim Wright reported they were, “simply unable to get PPE” since supplies were routed to hospitals. In Massachusetts, a nursing home resident called the police after staff refused to provide usual service because they had no PPE available. The pandemic has also revealed lax disaster preparedness. Though emergency planning is required by CMS, David Grabowski, professor of health care policy at Harvard Medical School, explained, “CMS hasn’t forced this and really held their feet to the fire.” Nursing home lobbying groups have also fought emergency planning protocols for years, calling them “extremely burdensome” to their operations.

Lack of Communication

Nursing homes have also been criticized for poor communication with both health officials and families. In the case of the Life Care Center, CMS’s inspection revealed that facility administrators had failed to report active cases to the county’s health officials in a timely manner. And in the case of Deborah de los Angeles, she learned of her mother’s COVID-19 diagnosis just 22 hours prior to her death. This trend has been echoed across the country. In Tennessee, Gallatin Center for Rehabilitation and Healing has been accused of downplaying residents’ conditions when called emergency services. In recorded 911 calls, several staff members made no mention of COVID-19 even after a fellow staff member had tested positive.

In late April, groups representing nursing homes and assisted living facilities in multiple states began asking state legislatures to provide immunity from coronavirus-related lawsuits. Industry representatives claim the protection is necessary to allow nursing home staff to focus on the work of protecting residents.

Sixteen states—Alabama, Louisiana, Kentucky, Mississippi, Nevada, North Carolina, Rhode Island, Vermont, Wisconsin, Arizona, Connecticut, Illinois, Georgia, Massachusetts, Michigan and New Jersey—have issued some sort of immunity for healthcare providers over the course of the pandemic. In Massachusetts and Wisconsin, nursing homes are explicitly covered and New York has since specified that its healthcare immunity does extend to nursing homes. For the other states, this opens up the argument on whether nursing homes fall under a healthcare provider’s umbrella. In Virginia, a law already existed giving nursing homes immunity during emergencies. Meanwhile, in Congress, Senator Mitch McConnell is seeking even wider-reaching legal immunities for all medical workers during the pandemic.

But critics of affording legal protections for nursing homes point to the risks of little oversight along with blanket immunities. Especially as visitors have been banned and communication with families stunted, this could create, as Richard Mollot, executive director of the Long Term Care Community Coalition, explained, “basically a license for neglect.”

Though these legal immunities may apply across a number of states, the protections do not extend to cases of gross negligence or intentional misconduct. In theory, this leaves room for pursuing negligence cases linked to extreme instances of lapses in care and willful miscommunication regarding residents’ health. Lawsuits may also focus on negligence stemming from a lack of staff and equipment. These cases may face a heavier burden of proof, but given the scale of loss on the line, many families will likely demand justice.

The wave of lawsuits seeking to hold nursing homes liable has only just begun. But we expect to see many commonalities in the experts consulted. Viral experts will, of course, be in high demand. This includes experts in epidemiology, infectious disease, and the CDC. Experts in eldercare and gerontology will also be critical resources for building these cases. Finally, as so much of the nursing home ecosystem is governed by individual states as well as federal agencies, it will be key to consult with experts in healthcare regulations at both the state and federal levels.