Long-Term Effects on Long-Term Care Facilities: Potential Increased Litigation Due to COVID-19
ABSTRACT: Long-term care facilities face many challenges, and the COVID-19 pandemic appears to be yet another significant challenge for these facilities. What can long-term care facilities do to prepare for potential litigation or avoid it altogether?
Long-term care facilities face many challenges, and the COVID-19 pandemic appears to be yet another significant challenge for these facilities. Their resident population includes those most vulnerable to illness or death from coronavirus because of advanced age and compromised immune systems. Plaintiffs’ attorneys are advertising their services to the families of those exposed to coronavirus in long-term care facilities. Each day the numbers of cases and deaths rise, increasing the litigation potential.
There are over 1 million residents in long-term care facilities in the United States, with millions more receiving hospice care and long-term care from home health agencies. As of March 30, more than 400 of approximately 15,000 long-term care facilities in the United States reported coronavirus outbreaks amongst residents, staff or both. On April 2, the Associated Press reported approximately 2,300 confirmed coronavirus cases in long-term care facilities and 450 deaths, a mortality rate of nearly 20 percent.
Some are blaming a lack of supplies, poor staffing, inadequate policies and procedures, and the failure to follow guidelines published by the Centers for Disease Control and Prevention (CDC) and Center for Medicare & Medicaid Services (CMS) as contributing factors for the spread of the virus and resulting deaths. Medical experts are sure to disagree about the standard of care during this public health crisis and the feasibility of mitigating the spread of coronavirus in long-term care facilities.
So, what can long-term care facilities do to prepare for potential litigation or avoid it altogether? There may be no foolproof way to prevent litigation, but certain strategies, when employed correctly, may help to mitigate risk.
- To the extent feasible, follow CMS and CDC published recommendations and guidelines for pandemic response, for example:
- Restricting all visitors, with exceptions for compassionate care, such as end-of-life situations;
- Restricting volunteers and nonessential health care personnel and other personnel (i.e. barbers);
- Cancelling group activities and communal dining; and
- Implementing active screening of residents and health care personnel for fever and respiratory symptoms;
- Ensure adherence to pandemic policies and response plans whenever possible;
- When practical, separate residents who have tested positive for coronavirus and care for them in a separate area of the facility;
- When practical, limit the staff caring for those who have tested positive and do not allow the same staff caring for those who have tested positive to care for those who are well;
- Maintain resident records, staffing and scheduling records, and visitor records in accordance with facility policies and procedures;
- Keep resident family members apprised of the condition of residents who are ill; and
- Keep residents and their family members informed of changing facility policies and procedures, posting and providing copies of any changes to residents and their family members whenever practical.
*A full list of CDC guidance to nursing homes can be found here.
Though numerous states are currently considering or have already passed legislation shielding health care workers and facilities from civil liability for their efforts to treat COVID-19 patients and prevent the spread of coronavirus, it is not yet clear whether these bills will apply to long-term care facilities and the care provided at those facilities. No matter the implications of proposed immunity legislation on long-term care facilities, facilities should continue to do their best to keep residents and staff safe during this extraordinary pandemic and review and amend policies and protocols as new issues arise.