Nursing Home Negligence and Wrongful Death

A difficult aspect of COVID-19 insurance defense will, without a doubt, be litigating claims involving the loss of life. Tragically, elderly Americans living in long term care facilities, such as nursing homes, are among the most vulnerable to the disease.[1] The CDC reports that over eighty percent (80%) of coronavirus deaths are among adults over the age of sixty-five (65).[2] More than twenty-five hundred (2,500) nursing home facilities in thirty-six (36) states have reported COVID-19-positive residents due to the inability to contain the outbreak.[3] This has led to an alarming surge of more than seventy-three hundred (7,300) confirmed COVID-19 deaths linked to nursing homes.[4] As more adults over the age of sixty-five (65) in the U.S. have now died of COVID-19 than were killed in the terrorist attacks on September 11, 2001, it is fair to say that the memory of what is ongoing in these nursing facilities will not end with the pandemic.[5]

Foreseeably, nursing homes will face intense investigations into their compliance of all infection and disease prevention and control procedures and professional standards of care guidelines. As an estimated seventy-five percent (75%) of long term care facilities are actively noncompliant with federal infection and disease control regulations, COVID-19 loss-of-life litigation will primarily consist of wrongful death and negligence claims against nursing home facilities and medical staff.[6] Due to the heightened risk for emotionally charged, excessive jury verdicts, it is imperative that nursing home defendants not only litigate on technical regulatory and legal compliance, but also on the facts and reality of providing geriatric healthcare during a pandemic.

President Trump has implemented the CARES Act, a $2 trillion stimulus package that protects volunteer heath care workers from certain civil liability.[7] In addition, several state law makers are taking steps to protect health care providers by providing civil medical immunity.[8] However, the immunity would not protect nursing homes against civil cases involving claims such as willful, reckless or criminal misconduct or gross negligence.[9]

  1. Crisis standard of care vs. longstanding standard of care guidelines.

Both federal and state laws establish standard of care requirements for an assisted living program to classify as a nursing facility.[10] Federal regulations require that the standard of care for long term care facilities “must establish and maintain an infection prevention and control program (“IPCP”) designed to provide a safe, sanitary, and comfortable environment and to help prevent the development and transmission of communicable diseases and infections.”[11] Under 42 C.F.R. § 483.80, the IPCP must include several precautionary measures such as:

               i.         A system of surveillance designed to identify possible communicable diseases or infections before they can spread to other persons in the facility;

              ii.         When and to whom possible incidents of communicable diseases or infections should be reported;

            iii.         Standard and transmission-based precautions to be followed to prevent spread of infections;

            iv.         When and how isolation should be used for a resident, including but not limited to:

A.        The type and duration of the isolation, depending upon the infectious agent or organism involved, and

B.        A requirement that the isolation should be the least restrictive possible for the resident under the circumstances.

              v.         The circumstances under which the facility must prohibit employees with a communicable disease or infected skin lesions from direct contact with residents or their food, if direct contact will transmit the disease; and

            vi.         The hand hygiene procedures to be followed by staff involved in direct resident contact.

 

      In April 2020, the first wrongful death lawsuit against a long term nursing care facility was filed in connection to the death of a COVID-19-infected resident.[12] In Deborah de los Angeles v. Life Care Centers of America Inc. d/b/a Life Care Center of Kirkland, et al., Plaintiff, Deborah de los Angeles, alleges that her 85-year-old mother, Twilla Morin, was a nursing home resident in Defendant’s Kirkland, Washington, facility when she became infected with the virus and ultimately succumbed to the disease.[13] Plaintiff contends that the nursing home failed to timely report or control the outbreak of the contagious respiratory illness that was first documented at the facility on February 10, 2020.[14] The Complaint states that "[a]lthough defendants were on high-alert for COVID-19 since January 2020, they lacked a clear plan of action leading to a systemic failure."[15] Further, Defendant’s staff are accused of continuing the day-to-day operations of the facility in a manner which enabled the virus to thrive in the most vulnerable of environments.[16] Plaintiff argues that, in February 2020 "[i]nstead of quarantining residents and staff, defendants admitted new residents and threw a Mardi Gras party. Instead of immediately notifying authorities of a 'flu' outbreak, defendants sat on it for 17 days before reporting anything."[17]

            Undoubtedly, Plaintiff is arguing negligence and wrongful death liability against the nursing home for a breach in the professional standard of care which allegedly resulted in the uncontrollable spread of the virus among elderly residents and staff. While there is a longstanding standard of care framework regulating nursing homes and its personnel, it is not without some degree of circumstantial fluidity.[18] Dependent upon the facts, Life Care Center of Kirkland’s best defense is likely that it was operating under crisis standard of care guidelines during the coronavirus pandemic and not simply the longstanding professional standards of care for nursing homes and healthcare personnel.[19] Crisis standard of care guidelines supplement the traditional rules in unorthodox circumstances justifying a substantial change in the level of care it is possible to provide.[20] Specifically, the American Nurses Association (“ANA”) defines “Crisis Standard of Care” as follows:

[A] substantial change in usual healthcare operations and the level of care it is possible to deliver, which is made necessary by a pervasive (e.g. pandemic influenza) or catastrophic (e.g. earthquake, hurricane) disaster. This change in the level of care delivered is justified by specific circumstances and is formally declared by a state government, in recognition that crisis operations will be in effect for a sustained period. The formal declaration that crisis standards of care are in operation enables specific legal/regulatory powers and protections for healthcare providers in the necessary tasks of allocating and using scarce medical resources and implementing alternate care facility operations.[21]

 

According to the ANA, during “a pandemic, nurses can find themselves operating in environments demanding a balance between time-limited crisis standards of care and longstanding professional standards of care.”[22] As such, variances “in the standard of care can occur in circumstances when available resources are limited or when a clinician is practicing in an unusual setting or with unfamiliar patient care needs.”[23] Hospitals, nursing homes and medical personnel now “find themselves operating in crisis standards of care environments.”[24]

Nursing homes and long term care facilities are given detailed guidance on how to operate under crisis standard of care procedures during disaster situations.[25] Specifically, the guidelines incorporate the following:

i.      A duty to care during crises like pandemics. Employers and supervisors have a corresponding duty to reduce risks to nursing staff safety, plan for competing priorities like childcare, and address moral distress and other injuries to personal and professional integrity such crisis events can cause;

ii.     A specific balance of professional standards and crisis standards of care will be based on the reality of the specific situation, such as the presence or absence of necessary equipment, medications or colleagues;

iii.   Decision-making during extreme conditions can shift ethical standards to a utilitarian framework in which the clinical goal is the greatest good for the greatest number of individuals, but that shift must not disproportionately burden those who already suffer healthcare disparities and social injustice;

iv.   Sacrifices in desired care must be fairly shared. This means that care decisions are not about “the best that can be done” under normal conditions. They are necessarily constrained by the specific conditions during the crisis.

v.     Registered nurses may be asked to delegate care to others, such as students, staff displaced from another institution, or volunteers. This will require a rapid assessment of the skills of the others available to assist in patient care. Nurses must continue to emphasize patient safety and appropriate delegation.

vi.   An increased reliance on a nurse’s own or the collective accumulated competence may be needed, as the usual range of colleagues, experts or support services may not be available.[26]

 

Additionally, institutional crisis standard of care guidelines for the nursing home facility’s operation in a major disaster scenario include:

i.      Institutions and healthcare systems have a duty to safeguard employees with policies and practices that are evidence-based, transparently decided and have clear accountabilities;

ii.       In a healthcare system characterized by structural racism, income inequality and healthcare disparities, a "first come first served" approach may compound existing injustice. Healthcare systems must counter these impacts with efforts to protect at-risk populations;

iii.      A range of contingencies must be planned for by accountable decisionmakers as demand for care increases and resources, such as staff and materials, become scarce;

iv.      Essential decisions about allocation of resources must be made at systems and community levels;

v.       The individual registered nurse should remain focused on patients and is responsible for giving the best possible care with available resources;

vi.      Decisions at the system level must be:

a.        Fair – Decision-making standards should be recognized as fair by all those affected by them.

b.       Equitable – The process used to make decisions about scarce resources should be transparent, consistent, proportional to the scale of the emergency and degree of scarce resources, and accountable for appropriate protections and the just allocation of available resources.

 

B.        Notice requiring action.

Nursing homes are trained and equipped for the prevention and control of diseases and infections that commonly afflict elderly residents. Bed sores, staph infections and the flu are all common medical complications requiring the traditional standard of care seen within any typical nursing home environment. However, Life Care Center of Kirkland and other nursing homes across the country combatted a novel coronavirus that is considerably unlike any communal disease ever encountered in the United States.[27]

During his call for a global plan of action against the disease, United Nations Secretary-General, Antonio Guterres, regarded the coronavirus pandemic as “the greatest test” our world has endured since World War II and a “human crisis” of historical proportions.[28] COVID-19 stands apart from other commonly contracted viruses in its high rate of transmission from non-symptomatic carriers and the speed in which it spreads from person to person.[29] "In general, when the flu hits you, people lie in bed and don't go out," said Dr. Simone Wildes, an infectious disease specialist at South Shore Health.[30] "But something we are seeing with COVID-19 is that, because the symptoms are mild for most of the population, they can go out and spread the disease quite easily, especially given how long you can be infectious for."[31]

In the Life Care Center of Kirkland case, the nursing home has a strong defense that it did not act negligently during the timeframe in which Plaintiff’s mother contracted the virus as it was operating within the professional standards of care guidelines and without notice of a national crisis. Plaintiff alleges that the nursing home was on notice of the pandemic dangers to its residents since January 2020 and that it negligently failed to take preventative measures to quarantine and discontinue patient admissions into the facility in February 2020.[32] Plaintiff’s argument is weak as the United States was not on notice of a domestic crisis during this timeframe. It was not until March 13, 2020, that President Donald J. Trump declared the coronavirus disease as a national emergency in the United States.[33] President Trump’s emergency determination came only two (2) days after the World Health Organization officially categorized COVID-19 as a global pandemic.[34] The first statewide stay-at-home “quarantine” order for Washington state was issued by Governor Jay Inslee on March 23, 2020.[35] Life Care Center of Kirkland has a strong defense against the claim that it was negligent in its care from January–February 2020 if it operated within the professional standard of care guidelines prior to an official notice of the novel coronavirus pandemic by federal or state authorities. Further, Life Care Center of Kirkland should argue that COVID-19 guidelines for long term care facilities and nursing homes on coronavirus prevention and control, resident quarantine, symptoms of infection, and mandatory reporting of infection rates to the health departments were not released by the CDC until April 4, 2020.[36]

As the events described above unfolded in quick succession, Life Care Center of Kirkland and similarly situated defendants must immediately establish a timeline of COVID-19 occurrences within their facilities to defend themselves against allegations that they failed to act or follow standard of care guidelines. The defendant’s documentation should include the date a resident first became symptomatic, actions taken by health care personnel, and the progression of the illness over time (e.g., did the nursing home resident’s health decline immediately or over the course of several days, were there any clear indicators for the necessity of medical intervention, and, if applicable, when the patient was transported to a hospital or placed under the care of a medical doctor). Overall, a nursing home defendant should not be held legally liable for the death of a COVID-19-infected resident if the facility’s health care personnel followed the longstanding standard of care guidelines for disease prevention and control prior to notice of a national emergency and/or before the publication of the CDC’s crisis standard of care recommendations for coronavirus disease control.

 

 

[1] Suzy Khimm, et al., More than 2,200 coronavirus deaths in nursing homes, but federal government isn’t tracking them, NBC News (Apr. 10, 2020), https://www.nbcnews.com/news/us-news/more-2-200-coronavirus-deaths-nursing-homes-federal-government-isn-n1181026.

[2] CDC COVID-19 Response Team, Severe Outcomes Among Patients with Coronavirus Disease 2019 (COVID-19) – United States, February 12- March 16, 2020, CDC (Mar. 18, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6912e2-H.pdf.

[3] Suzy Khimm, et al., More than 2,200 coronavirus deaths in nursing homes, but federal government isn’t tracking them, NBC News (Apr. 10, 2020), https://www.nbcnews.com/news/us-news/more-2-200-coronavirus-deaths-nursing-homes-federal-government-isn-n1181026.

[4] Matthew Mosk, et al., Inside nursing homes, coronavirus brings isolation and 7,300 deaths; Outside, families yearn for news, ABC News (Apr. 19, 2020), https://abcnews.go.com/Health/inside-nursing-homes-coronavirus-brings-isolation-7300-deaths/story?id=70225836.

[5] The Associated Press, Coronavirus in US: More Americans have died from COVID-19 than in 9/11 attacks, Syracuse (Mar. 31, 2020), https://www.syracuse.com/coronavirus/2020/03/coronavirus-in-us-more-americans-have-died-of-covid-19-than-in-911-attacks.html.

[6] Danielle Leigh, About 75% of nursing homes cited violated standards to prevent the spread of disease, ABC 7 N.Y. (Mar. 13, 2020), https://abc7ny.com/7-on-your-side-infectious-disease-nursing-home-homes-in-united-states/6010241/.

[7] Peter Kang, 6 States With COVID-19 Medical Immunity, And 2 Without, Law360 (Apr. 17, 2020), https://www.law360.com/articles/1264964/6-states-with-covid-19-medical-immunity-and-2-without.

[8] For example, New York, New Jersey, Michigan, Massachusetts, Illinois and other states have implemented some type of immunity for health care providers. Y. Peter Kang, 6 States With COVID-19 Medical Immunity, And 2 Without, Law360 (Apr. 17, 2020), https://www.law360.com/articles/1264964/6-states-with-covid-19-medical-immunity-and-2-without. Other states, such as Oklahoma, are in the process of providing medical immunity. Sarah Davis, Oklahoma House Passes COVID-19 Civil Immunity Bill, Law360 (May 5, 2020), https://www.law360.com/articles/1270712/oklahoma-house-passes-covid-19-civil-immunity-bill.

[9] Id.

[10] See, e.g., Moore v. Warr Acres Nursing Ctr., LLC, 376 P.3d 894, 903 (Okla. 2016)(Oklahoma law requires that a nursing facility comply with all federal, state and local laws regarding regulations and professional standards of care); 42 C.F.R. § 483.1.

[11] 42 C.F.R. §.483.1(b).

[14] Id.

[15] Id.

[16] Id.

[17] Complaint, De los Angeles v. Life Care Centers Am. Inc., et al., No. 20-2-07689-9 (Wash. Sup. Ct. 2020).

[18] See generally Am. Nurses Assoc., Crisis Standard of Care COVID-19 Pandemic, https://www.nursingworld.org/~496044/globalassets/practiceandpolicy/work-environment/health--safety/coronavirus/crisis-standards-of-care.pdf (last visited May 9, 2020).

[19] Id. (emphasis added).

[21] Id. (citing IOM Guidance for Establishing Crisis Standards of Care for Use in Disaster Situations, 2012).

[22] Id.

[23] Am. Nurses Assoc., Crisis Standard of Care COVID-19 Pandemic, https://www.nursingworld.org/~496044/globalassets/practiceandpolicy/work-environment/health--safety/coronavirus/crisis-standards-of-care.pdf (last visited May 9, 2020).

[24] Id.

[25] Id.

[26] Id. (emphasis added).

[27] Dr. Vinayak Kumar, COVID-19 has been compared to the flu; Experts say that’s wrong, ABC News (Mar. 27, 2020), https://abcnews.go.com/Health/covid-19-compared-flu-experts-wrong/story?id=69779116.

[28] Darryl Coote, U.N.: COVID-19 is ‘greatest test’ since World War II, UPI (Apr. 1, 2020), https://www.upi.com/Top_News/World-News/2020/04/01/UN-COVID-19-is-greatest-test-since-World-War-II/9631585722662/.

[29] Dr. Vinayak Kumar, COVID-19 has been compared to the flu; Experts say that’s wrong, ABC News (Mar. 27, 2020), https://abcnews.go.com/Health/covid-19-compared-flu-experts-wrong/story?id=69779116.

[30] Id.

[31] Id.

[32] Complaint, De los Angeles v. Life Care Centers Am. Inc. et al., No. 20-2-07689-9 (Wash. Sup. Ct. 2020).

[33] Letter from Donald J. Trump, U.S. President, to Secretary Wolf, Secretary Mnuchin, Secretary Azar, and Administrator Gaynor (Mar. 13, 2020) (on file with the White House), https://www.whitehouse.gov/briefings-statements/letter-president-donald-j-trump-emergency-determination-stafford-act/.

[34] Tamara Keith & Malaka Gharib, A Timeline of Coronavirus Comments From President Trump and WHO, NPR (Apr. 15, 2020), https://www.npr.org/sections/goatsandsoda/2020/04/15/835011346/a-timeline-of-coronavirus-comments-from-president-trump-and-who.

[35] King 5 Staff, Washington’s stay-at-home order extended to May 4, King5 (Apr. 2, 220), https://www.king5.com/article/news/health/coronavirus/inslee-extends-washington-stay-home-mandate-through-may-4/281-e08790db-aa54-4718-8e2b-a7712ebc92e5.

[36] CDC, Nursing Homes & Long-Term Care Facilities subsection to Coronavirus Disease 2019, https://www.cdc.gov/coronavirus/2019-ncov/hcp/long-term-care.html (last updated Apr. 15, 2020).