Post Pandemic Litigation in Skilled Care and Assisted Living Facilities

By Kelli Sullivan
Shareholder at Turner Padget

Every industry in America has been affected, in some way, by the changes wrought by the COVID -19 pandemic, but perhaps no industry has been more impacted than the health care industry. Hospitals and acute care facilities have been stretched to their limits in handling the influx of patients with COVD-19 symptoms, but skilled care facilities and assisted living facilities seem to be in the eye of the storm, as patients in those facilities are the ones most susceptible to infection with COVID-19: elderly, immunocompromised and often with a host of comorbidities. According to several studies, nursing homes and assisted living facilities account for almost 40% of all COVID-19 related deaths.

Because of the high morbidity rate and the rapid spread of this disease in the skilled care and assisted living environment, facilities have become prime targets for lawsuits alleging negligence in either the care or treatment of the patients or negligence in the manner in which the facility responded to the COVID-19 threat. Unfortunately, the pandemic caught many industries off guard, including health care facilities. Now, the industry is playing a game of “catch-up” while under threat of lawsuits.

What Kinds Of Suits Are Likely?

Insurers and defense counsel are expecting suits that allege one or more of the following issues:

• Death or serious illness due to the failure to prevent or mitigate the spread of COVID-19;
• Negligent infection control practices;
• Failure to properly notify family and/or physician regarding a diagnosis of COVID-19 or a change in condition of the patient related to COVID-19; or,
• Other injuries not related to COVID-19 that arguably could have been prevented had the facility not been short staffed due to COVID-19 (falls, bedsores, elopements).

Mitigation Of Risk

So, what can a facility do now to try to mitigate the risk of lawsuits down the road? Aside from the obvious steps of adhering to all Centers for Disease Control and Centers for Medicare and Medicaid Service Guidelines, there are some additional, more esoteric things to consider doing.

For example, make sure that documentation is properly stored and categorized. In South Carolina, a plaintiff has at least three years to bring a lawsuit. One of the biggest frustrations in nursing facility litigation is the lack of documentation and the lack of good record keeping. A facility can be doing everything right, but if they can’t prove they did it, the case takes a turn for the worse quickly. Document the preventative measures that the facility took, as well as the date upon which they were taken. For example, the date upon which visitors were restricted, when isolation of COVID-19 positive patients started, when temperature checks of employees started, etc. Those things can go a long way to showing a jury that the facility was doing all they could to protect the health and safety of the residents. Thoroughly document all staff training done on COVID-19 and infection related issues, both inside the employee’s personnel file and in the facility’s records. Keep copies of the materials covered, and have employees sign off on the fact that they attended trainings.

It is also important for the facility to have a good communication policy in place with residents’ family members. Designate one or two persons in the facility as the designated individuals to respond to family questions and issues related to COVID-19 so as to maintain consistent messaging. Train staff to refer family members to those individuals, and not to speculate or answer policy related questions. Update the facility’s website with information as it becomes available, and respond to family inquiries quickly and thoroughly. If families feel that their concerns are being taken seriously, they are less likely to jump to conclusions and allege inadequate care.

Is There Any Hope For Legislative Relief?

Some states have already enacted protections for nursing homes and assisted living facilities. The protections vary from complete immunity to protection from ordinary negligence only, allowing suits alleging gross negligence or recklessness to proceed. There are currently discussions in the South Carolina Legislature on these topics, but no bill has been passed to date. It is important to recognize, however that protection from ordinary negligence suits will not stop suits from being filed, as the determination of gross negligence vs. ordinary negligence is one that does not occur until the process of discovery is underway and almost complete. Even though there may ultimately be immunity imposed, facilities and insurers will still incur legal costs in defending suits where gross negligence is alleged.

Now is the time for health care facilities to take steps to safeguard and protect their interests from the lawsuits that are likely to follow this unprecedented pandemic.

Kelli Sullivan is a shareholder at Turner Padget. Having been on all three sides of the litigation equation she brings a wealth of experience to her clients in the areas of insurance coverage, medical malpractice/licensing and nursing home defense. Kelli can be reached at [email protected] or (803)227-4321.