Nursing home staff, administrators and frontline caregivers have worked tirelessly to prevent and manage the pandemic. Despite their heroic efforts, over 101,000 seniors and 750 employees had died of COVID-19 as of Dec. 1, 2020.
COVID-19 is a wake-up call to the entire skilled nursing and LTC industry. Organizations must strategically and systematically rethink their infection control protocols, staff training, risk assessments, standard operating procedures, safety standards, PPE inventory levels, compliance readiness and other risk points.
They must also prepare for another fallout from COVID-19: civil and criminal lawsuits. Staying informed on legal issues related to COVID-19 and understanding business practices that contribute to civil — even criminal — lawsuits are essential. With knowledge in hand, best practices can be put in place to help LTC operators protect themselves from, and even avoid, lawsuits.
Criminal & civil lawsuits and immunity protections
More than 55 COVID-19 negligence and wrongful death charges have already been filed against organizations and their leaders. Many more are in the process of being filed across the country. The lawsuits have a few recurring themes:
- Allegations that staff did not disclose timely, truthful information about COVID-19 cases in the facility, infection control procedures and the health status and care of relatives before they died;
- Three cases allege facilities concealed cases of COVID-19; and
- Two cases assert criminal neglect ,which can result in potential jail time in addition to fines, if convicted.
At least 26 states have implemented immunity provisions protecting senior care facilities and other healthcare providers from civil negligence lawsuits arising from the COVID-19 pandemic. These orders provide immunity for acts or omissions that happened after state public emergency orders were issued in March, but not before. Orders or legislation providing immunity to healthcare workers has been enacted in the following states: AK, AL, AR, AZ, CT, GA, HI, IL, KS, KY, MA, MD, MI, MS, MT, NC, NJ, NV, NY, OK, PA, RI, UT, VA, VT, and WI.
In states without an immunity provision, facilities may still be somewhat protected by federal law under the Public Readiness and Emergency Preparedness Act (PREP Act). This act allows the Health and Human Services secretary to proclaim a public health emergency and take appropriate action including using treasury funds to manage the emergency.
The PREP Act also contains a provision that provides liability immunity to certain individuals and entities against any claims resulting from measures used to fight COVID-19. It is important to note that this liability exclusion does not apply to claims involving willful misconduct. And some immunity provisions are expiring. While it is anticipated that these provisions will be extended, given the ongoing nature of the COVID-19 pandemic, an extension is not guaranteed.
Implement best practices now
Another recurring theme in many of the COVID-19 lawsuits is anger by families about a perceived lack of transparency and honesty by nursing homes in the days leading up to their loved one’s death. Creating a culture of open and honest communication with residents’ families is one of the simplest measures a facility can take to avoid a lawsuit. Many states also have “Apology Laws” that prevent an apology from being used in a lawsuit.
Putting a plan in place to address potential staffing issues is another way to avoid liability. Maintaining a full staff is important for facilities that have accepted government funds from the Paycheck Protection Program, as a failure to do so could trigger penalties under the False Claims Act. The Department of Justice has indicated they will prioritize the prosecution of those claims.
Failure to follow federal, state and local guidelines also puts facilities at risk for lawsuits. With regulations constantly changing and evolving, staying on top of changes and documenting compliance are essential. Documentation should include the chronology of actions taken to prevent or minimize the spread of the virus. Digitized records are the easiest way to maintain accurate, auditable documentation.
Having a safety and risk program in place that is supported by easy-to-use technology enables facilities to closely track required information and thoroughly meet reporting requirements. It also provides a detailed record of actions taken in the event a lawsuit is filed against a facility later.
Focus on safety, compliance and risk management
The pandemic exposed weaknesses in how long-term care and skilled living facilities assess, plan for and manage infection control risks. Employees and teams are often flying blind using an assortment of paper checklists, email and spreadsheets with no real-time understanding of their threat matrix and no early-warning systems. This tactical, haphazard and reactive attempt to maintain safety was not effective and will place leaders and organizations at risk for future civil and criminal liability.
Employing processes and infection control risk management technology can identify and manage risks more systematically. With mitigation strategies in place, LTC leaders can greatly minimize or avoid legal liability risks.
Raj Shah has more than 25 years of leadership experience in safety and risk management. He founded CareSafely so that senior care organizations of all types can modernize their infection control, safety, compliance and risk management programs. Shah also recently co-hosted a webinar on COVID-19 legal issues.