I received my first speeding ticket on the way to see “Risky Business” at the theater when it first came out. Cruising over a hill on a country road after picking up a couple of friends, I never had a chance.
My driving might have been a little risky but there was nothing chancey about the way the squad car knew just where to park without being spotted. Without a plausible defense, or any way to prepare for one ahead of time, I took my licks and wound up paying a lot extra for that trip to the movies.
In contrast, long-term care providers have plenty of warning that they are being stalked and will be subject to legal challenges. In fact, it’s already started in some quarters, as plaintiffs lawyers have filed more than a handful of lawsuits alleging negligence or substandard care during the pandemic era.
It’s about to get a lot worse. With the first anniversary of the public health emergency arriving in a little over a month, legal experts expect negligence and wrongful death lawsuits to pick up, especially in the handful of states where the statute of limitations is one year. Most states have a two-year limit.
Now is the time, if it’s not past already, for providers to prepare for legal battles that are surely coming. That’s why the pursuit of various liability protections is so important to the field.
“The plaintiffs’ bar is mobilizing and there is and will be an all-out onslaught attacking all of the [industry’s] liability shields,” attorney Matthew J. Murer of Polsinelli’s Chicago office told me Thursday. “The strategy is to overturn them outright or to significantly narrow their application to the point that they become meaningless.”
Unlike my teen driving habits, this may not be a quick process. Murer and colleagues Meredith Duncan and Jennifer Axel noted that providers can probably expect 2020-related legal challenges for at least the next five years. While the plaintiff bar is ready to pounce, members also are content to observe and plan the best time to strike.
Who’s at risk
Who’s particularly vulnerable? Large provider chains, which could face legal challenges in any of the many states in which they operate. California, Murer noted, is a particularly vulnerable place due to a certain fondness there for class-action litigation.
In cases adjudicated thus far, justices seem to be giving narrower interpretations regarding PREP Act immunity than the Department of Health and Human Services. The federal statute grants providers some protection for negative outcomes related to pandemic related care. In addition, states are pressing a variety of their own standards.
As cases wind through the appellate courts over the next six to 12 months, the wolves will be outside the door, licking their chops. If broader immunity is granted in upcoming rulings, they might lose some of their appetite, the thinking goes.
“We’re in a wait-and-see game,” Axel said, referring in part to the North Carolina case McKnight’s reported on Thursday. Clogged courts in many areas will draw out the suspense.
Getting affairs in order
The Polsinelli trio warned that providers who don’t prepare now for potential litigation down the road could be sealing their own fate. Of course, devising and pursuing solid COVID-mitigation plans, and then documenting every move, is vital for any operator. But so is caution against their own possible misinterpretations.
Murer, for example, said that if an assisted living operator doesn’t observe certain safety precautions because they supposedly apply “only” to federally regulated nursing homes, it will not sit well with a potential juror pool.
Instead, providers should continue focusing on their often heroic efforts during this public health emergency. “Juries are going to give providers the benefit of the doubt if they can show we were on this and doing everything we possibly could to get adequate PPE, to train staff up, communicate with family members and staff, implement cohorting,” Murer believes.
A pair of nursing home owners who were subject to a worldwide wave of criticism after 35 patients were found drowned in their Louisiana nursing home after Hurricane Katrina hit could be a helpful parallel. In the end, the vilified pair were found not guilty, in large part due to their attention to caregiving and conditions that were deemed unprecedented and beyond their control, according to sympathetic jurors.
So there is hope for providers, despite the growing horde of Huns outside the courtroom door.
Playing the long defense
The Polsinelli attorneys urged providers to continue to document “their story” — noting the reasonable preparations they made and countermeasures they pursued while the pandemic surged.
They also noted some of the basics that any provider must be mindful of as plaintiff pyrotechnics warm up in the wings.
The Top 5 risk areas communities face from COVID-19
- Vaccines and TB Testing
- Employees and Vaccines
The Top 5 liability risks with COVID-19
- Allowing known symptomatic employees onsite to work
- Failure to consistently screen
- Failure to cohort
- Failure to have adequate PPE
- Ignoring testing results
Sources of top liability claims
- Staff were told to work even though they reported having symptoms
- Management refused to give staff PPE even though they had it in the possession
- Failure to get adequate PPE
- Staff not informed of infections
Now, not two years down the line, is the time for providers to keep their eyes on the road and practice some defensive driving. While keeping a foot just heavy enough on the gas pedal, of course.
Follow Executive Editor james M. Berklan @JimBerklan.