Long-term care facilities have been in the fight of their lives – and for the lives of their residents – since March. In addition to the usual regulatory requirements, facilities must deal with COVID-19 and all that it brings, including visitation restrictions, increased infection control protocols, additional reporting, PPE and staffing issues, and compliance with ever-changing recommendations and requirements.
Unfortunately, even if an effective vaccine eliminates COVID-19 in 2021, its impact on long-term care facilities could remain for years to come. Residents who experience lasting effects from COVID infections, as well as families who lost loved ones living in facilities to COVID or were unable to visit during their loved ones’ final days, have the next couple of years to file lawsuits that could allege negligence in providing medical treatment, handling of family visitation or other aspects of a pandemic response.
Recognizing this possibility, many states have enacted legislation that limits the liability of healthcare providers, including long-term care facilities, for actions or omissions during the pandemic. While this legislation is certainly helpful, most of the legislation leaves openings for plaintiff’s lawyers to argue that their client’s claims are not prohibited.
As an example, Iowa’s COVID-19 Response and Back-to-Business Limited Liability Act provides protections for healthcare providers and other businesses. Under the act, providers cannot be held civilly liable for various actions, which include, but are not limited to, screening, assessing, diagnosing, caring for or treating individuals with COVID-19.
The act even provides protection for acts or omissions relating to non-COVID-19 patients, if those acts or omissions result from supporting the state’s response to COVID-19. This may include acts such as providing treatment outside the premises of a healthcare facility or using equipment and supplies outside their normal use. Liability can still be established, however, if the provider acted recklessly or engaged in willful misconduct.
While the protections in Iowa are certainly broad, facilities should expect litigation surrounding a provider’s particular act or omission and whether it was “in support of the state’s response to COVID-19” or whether the misconduct was reckless or willful. Another area ripe for dispute is whether the provider satisfies the “safe harbor” provisions of the act, which precludes an award of damages related to COVID-19 exposure or potential exposure so long as the provider was complying with applicable executive orders, regulations or public health guidance.
While this is only one example, many new state laws contain similar intentional misconduct exceptions and have varying requirements for the connection between the act at issue and the pandemic. These provisions will need to be applied by courts, and plaintiffs’ lawyers inevitably will advocate for interpretations that allow their clients to pursue damages.
While there is no cure-all to ensure facilities avoid litigation entirely, there are practical steps long-term care facilities can take to help decrease the risk of litigation or damages.
- Document, document, document. Not only should you document the care provided to each individual resident, you should also track and document policy changes. Keep copies of the guidance you followed or relied upon in making changes to your policies. Maintain a chronology of those changes and ensure they coincide with changing guidance and recommendations from public health authorities. If you have to deviate from a typical standard of care (i.e., re-use of PPE), document the reasons why you had to do so. If you are unable to meet any requirement, document your efforts to meet the requirement and the reasons you were unable to do so. Making note of the reasons for your actions now will help explain those decisions later and perhaps help establish that your facility acted within the liability limitations of your state’s law.
- Provide clear instructions and training to employees. In order for a policy to be effectively implemented, your employees must be aware of that policy. It is important to train staff on updated policies and procedures, document that training, and ensure staff acknowledge receipt of policy updates.
- Engage in open and clear communication with residents and families. Residents and their families appreciate being fully informed not only of the policies but of the reasons for the policies. If they know that you are restricting visitation in order to comply with regulations or recommendations, it is easier for them to accept, and they are less likely to lay blame on your facility. Also, encourage families to take advantage of any visitation exceptions (such as at end of life) or alternatives. Document your communications and whether the family took advantage of what was offered. People tend to remember things differently when they look back on a situation, especially an emotional one, and it is important to have a record of what occurred to respond to later allegations.
Lawmakers have certainly stepped up in many states to recognize the challenges faced by providers, but we may not see the impact (or lack of impact) of the liability limitations for years to come. The limitations period for medical malpractice and personal injury actions varies in each state, but most states have a two- or three-year statute of limitations for these types of actions.
Taking the actions set forth above will help facilities weather the future challenges that will most certainly come even after COVID-19 is no longer spreading across the country.
Rebecca A. Brommel is a healthcare litigator at Dorsey & Whitney LLP in Des Moines, Iowa. She represents numerous long-term care facilities and frequently handles regulatory issues and litigation matters for such facilities.
Andrew Brantingham is a partner in Dorsey & Whitney’s Healthcare Litigation practice group in Minneapolis, MN. He represents a broad range of clients in the healthcare field, with particular expertise in defending hospitals and healthcare providers against medical malpractice claims, business litigation in the health industry, and appellate matters.