Norris Cunningham

There is little doubt that leaders at Life Care Centers of America breathed a huge sigh of relief, as did the entire skilled nursing industry, when a federal jury found that Life Care Center of Kirkland, the site of the nation’s first significant COVID-19 outbreak was not liable for the deaths of two residents who died as a result of the virus.

We strongly agree with the jury’s determination that any negligence on the part of the facility was not the proximate cause (the legal cause) of the resident deaths. Proximate cause is required for a jury finding of liability. 

While the jury verdict affords some relief for long-term care providers who are uncertain how they might fare in civil cases related to the COVID-19 pandemic, the industry must understand that a similar result in future cases involving pandemics, natural disasters and other emergencies, even if those events involve new phenomena and situations not previously encountered. The concept of proximate cause requires foreseeability.

That is, the injuries (in Kirkland case the resident deaths from COVID-19) must be a foreseeable result of any breach of duty by the facility. Life Care Center’s winning argument was that COVID-19 was so entirely new that there was no way the staff could have foreseen how easily transmissible and deadly the virus could be. That was something most reasonable people could accept. For example, early on, it was not widely known that individuals who were asymptomatic could easily spread the virus. Simply put, the jury understood that we were all, to a significant extent, in the dark about COVID and how to fight it. 

A question before the industry now is will that foreseeability issue cut for or against the skilled nursing facilities in the future. The short answer is we do not know, so our advice is for all operators to make emergency preparedness a significant priority for staff at all levels of the organization.

Historically, emergency preparedness programs in skilled nursing facilities have been less prioritized as facilities understandably focus on patient care and operations — particularly clinical staffing. However, post-COVID, there is a renewed focus on emergency preparedness throughout the industry. Operators and facility staff should concentrate on, and perfect, their emergency preparedness programs now. 

An emergency preparedness program describes a facility’s comprehensive approach to meeting the health, safety and security needs of the facility, its staff, their residents and community prior to, during and after an emergency or disaster.

The program encompasses four core elements: an emergency plan that is based on a risk assessment and incorporates an “all hazards approach;” policies and procedures; a communication plan; and a training and testing program. The full emergency preparedness program must be reviewed and updated at least annually for LTC providers. The fact that other types of providers may perform program reviews every two years signals the heightened focus placed on LTC facilities’ emergency preparedness. 

While the Kirkland verdict is a good sign for providers facing COVID-related claims, you can expect that future cases will be populated by jurors who take a different view of the foreseeability issue because we have lived through a pandemic that has raised awareness and enabled knowledge about emergency preparedness. You can expect that jurors will impute that awareness and knowledge to the industry. That will make the issue of foreseeability a much closer question. 

Norris Cunningham is a member of Stoll, Keenon, Ogden’s (SKO) Indianapolis office specializing in healthcare. He co-founded Katz Korin Cunningham PC, which merged with SKO in 2022. Contact him at [email protected].

Opinions expressed in McKnight’s Long-Term Care News columns are not necessarily those of McKnight’s.