On Friday, I wrote about the explosion of COVID litigation in health care and senior living, especially that which is challenging federal immunity under the PREP Act and cases challenging insurance coverage for business interruption coverage resultant from COVID remediation policies (business closure, school closures, vaccine requirements, etc.).
Today’s post is a bit more focused on the provider level, specifically what senior living providers are seeing in terms of litigation and as applicable, COVID. Two types of litigation are the focus for this post.
- Litigation that is directed at the provider for causing death due to negligence in preventing COVID spread.
- Litigation that is about an event that occurred during COVID outbreaks/public health emergency such as a fall or development of infections (non-COVID), that were preventable (theoretically), if the facility responded better to residents subjected to isolation, etc., due to COVID. This approach is highly nuanced.
One large area requiring delineation is senior living by provider type – Assisted Living, Independent Living vs. Skilled Nursing. Assisted Living and Independent Living are state regulated providers and while regulations vary widely state-to-state, the requirements for medical care/skilled care availability and pandemic level infection control are virtually, non-existent for these provider types. They are by definition, congregate living facilities where isolation is difficult and residents have superior rights to come and go, visit with each other, not be confined, etc.
SNFs/Skilled Nursing Facilities have a different level of requirements/regulations such that, sufficient staff with sufficient training and qualification are required under federal law, to meet resident care needs. Policies and procedures are required to handle infection control and disasters/emergencies, including pandemics/disease outbreak. While residents still have similar rights as applicable in Assisted Living, the expectation is that sufficient numbers and qualifications of staff are available to accommodate isolation and deliver infection control-level care with sufficient amounts of PPE (protective equipment, etc.).
Not surprising, the lion-share of cases alleging wrongful death due to failure to prevent the spread of COVID/failure to adequately protect residents from infection, are pending against SNFs. The negligence is broadly defined as,
- Failure to have sufficient staff in numbers and by qualification (e.g., not enough RNs),
- Failure to have proper and sufficient levels of personal protective equipment (PPE) and adequate testing supplies,
- Failure to provide adequate communication to residents, families, and regulatory officials regarding the presence of COVID in a facility (e.g., how many residents, how many staff, etc.).
A decent recap of some cases and the litigation trend in senior living regarding infection control practices is available here: https://www.expertinstitute.com/resources/litigation-guides/covid-19-nursing-home-negligence/
Litigation that envelopes COVID within the claim is a nuance we are just starting to see. As COVID mitigation policies placed facilities in sub-optimal operating conditions, it is not surprising that adverse resident outcomes (care outcomes) occurred. The question, however, relates to negligence on the part of the facility.
Much of what facilities were required to do as part of COVID response was in many ways, deleterious to providing optimal care. For example, isolating residents that tested positive made observation of residents with behavior problems, difficult if not in some ways, impossible. A resident prone to self-transfers and a fall risk, with COVID, forced to isolate would likely, have a heightened fall-risk. Alarms simply don’t prevent falls. Restraints are not an option as the same, are against federal code and resident rights.
Residents with behavior problems, isolated due to COVID, from family or other visitors would reasonably, have escalating behavior problems. Increasing medication to combat the behavioral issues is not nor should not be an option but no doubt, the same occurred.
Residents prone to skin breakdown, likely were repositioned less often. COVID isolation would negate the amount of staff availability for turning and repositioning, especially during outbreak periods.
Staff availability also was stressed as employee infections produced periods away from work, minimizing already tight staff resources. Vaccine mandates pushed some staff away from provider floors, similarly, stressing tight staff resources. Fewer staff available for care placed residents at-risk.
Yet the question still begs: Given the above, is a facility that is required to comply with isolation periods for staff and residents, required to comply with vaccine mandates, required to limit visitations, etc., negligent when resident care suffers? No doubt, litigation will test the question.
Doing a simple Google search on “COVID litigation” produces line after line of results. Congress and state governments continue to work on re-defining and expanding or tightening, COVID immunity. Personally, I believe that there needs to be some reckoning from the various levels of government, on the COVID response. Allowing providers to “hang” as a result of mandate and policy fallouts will not serve public health or health care, any good.
If suits proceed, based solely on wrongful death or bad outcomes, providers that did their best to comply with at times, onerous and nonsensical regulations, will be punished – unjustly. If policy makers got it wrong, shouldn’t the reckoning of COVID be not with litigation claims against the provider, but at the levels where the accountability truly belongs?
A good review of current COVID litigation and the full landscape of various types of claims is available here: 20-7523-covid-19-litigation-trends-report-m3_231016_082721
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