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Coronavirus Nursing Home Negligence Lawsuits

  • April 9, 2020
  • KBA Attorneys
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The elderly are particularly susceptible to the coronavirus. Unfortunately, this puts nursing homes at a particular risk for outbreaks.

In Washington, more than thirty residents of the Life Care Center of Kirkland in Washington State died after a coronavirus outbreak in that nursing home. This nursing home has recently been hit with a $600,000 fine by the federal government. Federal inspectors who visited the facility March 16 found “serious deficiencies” that constituted “immediate jeopardy to resident health or safety.” Life Care Center of Kirkland said in a statement Thursday that they had addressed the “immediate jeopardy” citations from inspectors, and were working with the Centers for Medicare and Medicaid to “find solutions to their ongoing concerns.”

In Maryland, ten residents have died at Pleasant View nursing home. Governor Hogan has said recently he is establishing a strike force to assist the state’s nursing homes.

On April 8, 2020, Canterbury Rehabilitation and Healthcare Center in Henrico County reported its thirty third death as a result of the coronavirus. Among the current residents, 49 have experienced virus-related symptoms, ranging from severe to mild, while 35 have tested negative. At least 25 Canterbury health care workers have tested positive for the virus.

In the New Jersey Veterans Home in Paramus, coronavirus has killed at least 10 residents and likely contributing to the deaths of 27 others over the past two weeks. Six residents have been hospitalized, 70 are ill and dozens of staff members have been diagnosed or are awaiting test results, according to news outlets.

Obviously, not all infections can be prevented. Elderly people get infections in nursing homes all the time because of their weakened immune systems and close quarters residential areas. So what must nursing homes do to meet the standard of care and avoid lawsuits based on their failures to prevent coronavirus outbreaks?

First, nursing homes must still abide by the federal regulations relating to infection controls. These regulations are known as F-Tags. According to federal regulations, nursing homes must establish an Infection Control Program under which they  –

(1) Investigate, control, and prevent infections in the facility;

(2) Decide what procedures, such as isolation, should be applied to an individual resident; and

(3) Maintain a record of incidents and corrective actions related to infections.

Second, when nursing homes determine that an outbreak of an infection is possible, they must prevent the spread of infection by

  • Isolating the resident
  • Prohibit employees with a disease from direct contact with residents
  • Require staff to wash their hands after each direct resident contact

Third, special guidelines have been promulgated by state and federal agencies to prevent the spread of the coronavirus. Given the special circumstances and challenges the coronavirus prevents, nursing homes must abide by these newly issued guidelines to protect nursing home residents from infection.

For example, the Centers for Disease Control and prevention has instructed long-term care facilities to develop comprehensive coronavirus response plans. The CDC has advised the following steps to prevent or limit the outbreak of the coronavirus in nursing homes:

  • Restrict all visitation except for certain compassionate care situations, such as end of life situations
  • Restrict all volunteers and non-essential healthcare personnel (HCP), including non-essential healthcare personnel (e.g., barbers)
  • Cancel all group activities and communal dining
  • Implement active screening of residents and HCP for fever and respiratory symptoms

Nursing homes also should provide appropriate supplies to prevent infection, including:

  • Hand hygiene supplies:
    • Put alcohol-based hand sanitizer with 60–95% alcohol in every resident room (ideally both inside and outside of the room) and other resident care and common areas (e.g., outside dining hall, in therapy gym).
    • Make sure that sinks are well-stocked with soap and paper towels for handwashing.
  • Respiratory hygiene and cough etiquette:
    • Make tissues and facemasks available for coughing people.
    • Consider designating staff to steward those supplies and encourage appropriate use by residents, visitors, and staff.
  • Make necessary Personal Protective Equipment (PPE) available in areas where resident care is provided. Put a trash can near the exit inside the resident room to make it easy for staff to discard PPE prior to exiting the room, or before providing care for another resident in the same room. Facilities should have supplies of:
    • facemasks
    • respirators (if available and the facility has a respiratory protection program with trained, medically cleared, and fit-tested HCP)
    • gowns
    • gloves
    • eye protection (i.e., face shield or goggles).
  • Consider implementing a respiratory protection program that is compliant with the OSHA respiratory protection standard for employees if not already in place. The program should include medical evaluations, training, and fit testing.
  • Environmental cleaning and disinfection:
    • Make sure that EPA-registered, hospital-grade disinfectants are available to allow for frequent cleaning of high-touch surfaces and shared resident care equipment.
    • Refer to List Nexternal icon on the EPA website for EPA-registered disinfectants that have qualified under EPA’s emerging viral pathogens program for use against SARS-CoV-2

On March 25, 2020, the Virginia Department of Health issued its own guidance for nursing homes following the lead of the CDC. According to the Virginia Department of Health, facilities must take actions to prevent an outbreak, including:

  • Developing  an action plan
  • Restricting visitors
  • Identifying infection early
  • Enforce social distancing among staff and residents

Once an outbreak has occurred, facilities must:

  • Notify the local health department
  • Test to confirm infection
  • Implement facility-wide disinfection
  • Consider suspending new admission
  • Restrict visitors
  • Use PPE

Nursing homes that do not take the necessary steps to prevent coronavirus from spreading can be held legally responsible for damages and death caused by the virus. For example, if an infected nursing home staff member exposes a nursing home resident to the virus after not wearing protective gear, the nursing home resident may have a valid claim for a negligence lawsuit. If a nursing home who has been aware of the outbreak and guidelines allows a visitor into the facility, that nursing home could be subject to a negligence claim.

Not every coronavirus outbreak in a nursing home should lead to a lawsuit. Some nursing homes are doing everything they can to prevent the spread of infection. Perhaps other nursing homes are not following the standard of care in enacting infection controls. Based on the specifics of your situation, a qualified nursing home negligence lawyer will be able to review the facts and determine whether you have a valid claim premised upon a nursing home’s failure to prevent a coronavirus infection.