COVID Assisted Living Claim in Virginia – Potentially Precedential

My work has me very attuned to litigation trends and in particular, COVID litigation. We are just beginning to see COVID litigation coming to a head with some interesting decisions.

Within my firm (H2 Healthcare, LLC), is a practice focus headed by my wife. It involves clinical compliance and complex litigation support. She is considered one of, if not the foremost, clinical compliance expert in post-acute care and senior living in the country. She is often called on to provide analysis on litigation matters and in turn, when applicable, expert witness.

The case in reference comes from Virginia where the Plaintiff purportedly died of COVID in January of 2021, claiming that the COVID infection occurred at the Assisted Living where she resided (Tribute at One Loudoun, LLC, operated by Cadence Senior Living, LLC). Per the court filings, “It is alleged that Defendants were negligent in multiple respects: by failing to take all necessary precautions to prevent the spread of the virus to residents, supplying inadequate staff, and supplying inadequate care. In particular, the complaint alleges that Defendants held a New Year’s Eve celebration for residents on December 31, 2020 that did not comply with their COVID-19 protocol and the standard of care for similarly situated assisted living facilities.”

The Defendants (One Loudoun and Cadence) responded that the Plaintiff needed an expert witness to file a wrongful death claim against a healthcare provider as established under Virginia law.  The applicable Virginia code that provides immunity to healthcare providers and was the reference relied upon by the defense is here: Virgina Healthcare Immunity Law   The Defendants claim that the immunity provided to healthcare providers applied as well, to Assisted Living Facilities.

The Court, in its ruling on Defendant’s motion to dismiss, stated that Assisted Living Facilities are not healthcare providers as they are not licensed as nursing homes or hospitals, and they do not regularly employ licensed healthcare providers to “primarily” render healthcare services.

The decision means that an expert opinion is not required to bring the lawsuit, and that Tribute at One Loudoun is not covered under the Virgina law providing immunity to healthcare providers under the COVID public health emergency.  A summary of the Court’s decision and the ruling is here:

Where this case is headed could be precedential and perhaps, open the doors for more litigation in senior living facilities as a result of deaths that may or may not be directly tied to COVID infections. Below is my quick summary of the issues at stake and how the claim’s allegations may/may not be impactful from a policy and infection control perspective.

  1. The complaint alleges that the infection (Plaintiff) occurred as a result of New Year’s Eve party due to understaffing, substandard care and the community’s failure to follow COVID-19 protocols. Which protocols will be the most interesting as part of the claim. Was it social distancing? Was it masking? Was it resident hygiene? Was the resident vaccinated?  Was staff vaccinated?
  2. The reason why so many states created immunity statutes and/or provisions for providers of all types is that COVID infections are almost impossible to source trace and time from potential infection to time where symptoms occur, and disease becomes noticeable is not uniform. In other words, the timing of the infection is difficult to establish. Likewise, who spread COVID is difficult to determine, unless someone with active symptoms, affirmatively with COVID, was present for a source to be identified.  Asymptomatic infection with COVID has been determined to be a remote risk, if any risk at all.
  3. Other non-pharmacologic measures to mitigate or reduce COVID spread (protocols) have since been determined to have little to no impact on controlling the spread. Masks and social distancing have been shown to be of no particular use in reducing the spread of COVID or reducing infection risk. Other mitigation protocols around surface hygiene have also shown no real benefit in reducing COVID spread as the virus is aerosolized, not sustaining infection capacity on surfaces through touch or ingestion. The vaccines have also been identified as having no particular benefit in reducing infection risk and having no efficacy at all in preventing COVID spread.  The vaccine benefit is more therapeutic, producing a risk-reduction benefit for some, in developing serious disease complications once infected.
  4. Did the resident die from COVID-19 or with COVID-19? There is a distinction as many seniors have significant comorbidities consistent with other disease states such as diabetes, heart disease, Parkinson’s, etc.

No doubt, this case will be interesting if in fact, arguments about how COVID may be contracted in the facility and how the same was due to negligence.  If the court decides that a particular standard to reduce infection exists, I suspect appeals and very interesting discussions, coming forth.

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