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Nursing Home Gross Negligence: Avoiding Fines and Lawsuits During COVID - Healthcare Quality Improvement Campaign
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by Jessie Arnold

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Despite the early knowledge that patients in nursing homes were at great risk of infection and death from COVID, the problem has not abated. At least 6,477 people in New York have died in nursing homes, but senators are investigating this number and believe it is more accurately stated at 10,000-11,000. In particular, senators believe that if a person is infected at the nursing home and later transported to the hospital where they die, this should count as a “nursing home death;” currently these are not counted in those tallies.

A recent report by other senators found that throughout the summer of 2020, nursing home cases of COVID surged. They cited a lack of personal protective equipment (PPE), with Sun Belt states suffering the most spite having months to prepare. Some states have enacted either executive orders, from the governor, or laws, from the legislature, that attempt to shield nursing homes from liability from COVID injuries and deaths. These laws will cover the time period when emergency orders were in place, and should provide immunity to nursing homes from the most frivolous cases. However, in general, they will not shield nursing home from gross negligence. While it is a high standard to meet, requiring a reckless disregard for the safety of patients, we have seen cases where plaintiffs could probably meet that standard. In considering their liability, nursing homes need to have an eye toward whether prior to the immunity orders or legislation, they had adequate infection control and other protocols in place that protected patients. If a nursing home had already seen citations or lawsuits for inadequate sanitation, neglect, or abuse, this pattern can be considered in a wrongful death lawsuit. The elements of a negligence claim can be examined here.

What’s At Stake Financially

Remember that an injured party can seek damages for:

  • Pain and suffering
  • Medical expenses
  • Lost income for family who had to care for the injured party
  • Mental trauma
  • Permanent physical injury
  • Loss of life enjoyment

These are expensive claims and worth avoiding.

The following are some ways to avoid gross negligence claims and fines.

Guidelines, Procedures, and Protocols in Protecting Nursing Home Patients from COVID

  • Follow all government guidelines. In the event of a conflict, follow the most cautious guidelines.
  • Be proactive. Nursing homes who seem to be passive about COVID infections and later see large numbers of infections and deaths are going to be at higher risk of lawsuits finding reckless disregard for patient health. By implementing procedures that take into account a strong concern for patient welfare and the individual risks of the particular nursing home, facilities will have a stronger defense.

Training and Preparedness

Infection control is of paramount importance, and unfortunately, 82% of nursing homes were cited for poor infection control BEFORE the pandemic. Because of the “congregate nature” of nursing homes, patients are at greater risk than the general populations. COVID is primarily spread through the air but can also be passed on surfaces

To prevent a gross negligence claim, nursing homes at least need to provide the kind of training outlined by the CDC.  The CDC also recommends that “facilities should assign at least one individual with training in IPC to provide on-site management of their COVID-19 prevent and response activities…”

Staff Considerations

  • Hire enough staff. Understaffing is a common risk factor at nursing homes and it presents a risk both to staff and residents. Some research has indicated that 95% of nursing homes are understaffed. While this may be overstated, it is true that nursing homes have had to pay out millions in wrongful death claims attributed to understaffing. While nursing homes, especially those publicly owned, need to try to maximize profitability, high Medicaid fines and mass lawsuits will undercut those profits in the end if nursing homes don’t keep an eye toward proper care of patients. 331 staff died of COVID in July and August (a period in which 16,487 residents died). Despite that finding, it is likely that even more nursing homes have inadequate staff and did before the beginning of the pandemic, and in some cases, it is because of budgetary concerns. It is important to realize these budgetary concerns may pale in comparison to the existential threat large fines and judgments present.
  • Take care of your staff. Many of the infections so far might have been prevented not only by looking after patients but looking after staff. Seriously underpaid staff are a liability on many levels. At the least, they tend to work for multiple facilities, which has led in some cases to them becoming superspreaders. In fact, right now you should not allow staff to work at multiple facilities. While nursing homes often cite difficulty in finding adequate staff, this is likely due to unrealistic wages and can be alleviated. A recent outbreak at nursing homes in Shasta County, California, has been attributed to workers. In the Bay area, a facility received fines from the state for failing to warn other facilities that staff traveling between the two may have been exposed.
  • Give staff paid time off when they are sick so they are not tempted to not report their illness and go to work and spread COVID and other respiratory infections.
  • Proper staffing allows staff to do their proper jobs. In other cases, staff trained in other areas are doing the jobs of nurses, which is outside their wheelhouse and may lead to more infections.

Recognize and Account for Risk Factors in the Nursing Home

Recognize your risk factors. Facilities in large metropolitan areas are more vulnerable, as are facilities with large Black populations. Black nursing home residents have been affected and died at a greater rate than white nursing home residents, a surely unacceptable fact that suggests not only pre-existing conditions but discriminatory care.

Specifics of Infection Prevention

  • Test, test, test.  Follow the recommended testing protocol and set procedures for whether the staff is allowed to work while results are still pending. Always have adequate test kits available.  At a Maine facility, an employee with COVID symptoms was allowed to continue working when supervisors failed to note her symptoms reported on a log. She was not tested. The employee chose to keep working and is believed to be single-handedly responsible for at least 7 deaths. Deaths like these are clearly avoidable and may lead to a claim of negligence. Not following through with your own protocols looks like negligence, as well.  
  • Isolate. Isolation of sick individuals is paramount to protecting patients from the spread of COVID. The largest fine related to COVID so far is against a New York nursing home where sick patients were rooming with uninfected patients. The $50,000 fine was the highest the state had seen.  You need to have a plan in place for how isolation will occur.
  • Have adequate equipment. This requires having N95 or higher level respirators, goggles or face shields, gloves, and gowns, readily available.
  • Use PPE properly. The New York nursing home that was fined $50,000 had staff who did not change their PPE between positive and uninfected residents (and didn’t wash their hands). Staff also either were not wearing masks or not wearing them properly. PPE only works if procedures are followed, and it is a strong ally in preventing infections. At the very least, nursing homes need to realize how important the appearance of caring about procedures and regulations is in avoiding claims and fines.
  • Ventilation. It cannot be stressed enough that this is an airborne virus. Facilities with high carbon dioxide levels demonstrate a low level of effectiveness of ventilation. An air quality detector that reliably measure CO2 levels costs only around $200, far less than fines and negligence claims. Mechanical ventilation may be required in facilities where wide corridors have been built to accommodate beds and windows can’t properly ventilate rooms. Solutions for temporary ventilation can be found online.
  • Get proper care for sick patients. So far in lawsuits that have been filed, a failure to care for COVID positive patients and a failure to transfer them to the hospital when necessary shows up repeatedly.
  • Remember that pre-existing conditions make patients more vulnerable, but do not exculpate you in the case that they’re ill.
  • Prepare for the future. The possibility of a pandemic was known years in advance, and the probability that this pandemic would escalate was known in February of 2020, yet nursing homes did not have adequate PPE or procedures in place. This

Cases to Watch

The family of Jose Velasquez, a 79-year-old man in Texas, has filed suit against a nursing home after their father died of COVID. The patient was diagnosed on March 26 and died on April 17. Despite such a long period of time passing with the patient having a diagnosis of COVID, the family was assured that Mr. Velasquez had no symptoms of COVID, and up until the time of his death were told that he was fine. The nursing home did not transfer him to a hospital, which the family alleges was a failure to provide adequate medical care. 18 residents had died from the virus at the one facility alone. The court will also likely look at the record of other homes owned by the same company, and 43 deaths

What this case demonstrates is the importance of respectful communication with family. Often a family can accept the passing of a relative as natural if they see that everything possible is being done and that they are adequately prepared for the worst wherever possible. In this case, the family was likely inflamed by the nursing home’s bad behavior and incited to file suit where, if they were properly informed of efforts being made on their family member’s behalf, they might otherwise have not.

But what the case also shows is how important a nursing home’s prior record is in these gross negligence lawsuits. The suit alleges the facility had a poor safety record, was chronically understaffed, had been previously cited for failing in their infection-control program, a pattern that only continued after the COVID pandemic began.

In Portland, where 19 people had died of COVID as of May, testing was performed but again the family and possibly residents were allegedly not informed of results, lied about safety procedures in place, and other neglectful malfeasance.

Two other cases were filed in Kansas, highlighting the importance of nursing home preparedness. In one case, the facility allegedly did not have nor use PPE. In that case, the family is challenging the constitutionality of a $250,000 cap on wrongful death cases. A simple failure of masking up could be an expensive mistake for the company. In the other Kansas case, there was a history of short staffing, Medicare reports finding deficiencies, and resident complaints. The case alleges a departure from standards and failure to educate, supervise, and train personnel.

For more advice on caring for patients during this pandemic, see Considerations for Retirement Communities & Independent Living Facilities, July 2020, by the CDC.

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Nursing Home Gross Negligence: Avoiding Fines and Lawsuits During COVID

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