by Jessie Arnold

This article will provide 7 considerations for risk management for nursing homes dealing with the COVID-19 outbreak. The following considerations are taken into account:

1. Identify Most Common Lawsuits related TO COVID
2. Document, Document, Document
3. Communication Within and Without
4. Clear Policies
5. Appropriate Malpractice Insurance
6. Avoid Medicare Fines
7. Improved Overall Care

Identify the Most Common Lawsuits Related to COVID

Other common bases of lawsuits relating to COVID-19 infections and nursing homes include failure of infection control and failure to isolate ill patients.

A recent shocking case shows that negligence lawsuits by family members aren’t the only risk nursing home companies and staff face. Two nursing home administrators were indicted by a grand jury in Massachusetts for criminal neglect in their handling of COVID in their facilities. 76 individuals died of coronavirus at the Holyoke Soldiers’ Home. This nursing home is state-run. The two individuals, Bennett Walsh and David Clinton, each face five criminal counts. The state alleges that the defendants put the veterans at the home at greater risk of infection and death because employees acted wantonly or recklessly, allowing or causing injury, neglect, or abuse of a disabled or older person.

While a criminal case, this case is an example of one of the most common charges against nursing homes regarding their handling of COVID: a failure to isolate sick patients. Patients were moved six to a room where the maximum number of people to those rooms should have been four, and arguably fewer given the highly transmissible nature of COVID.  Sick and uninfected patients were placed in the same room, a virtual death sentence for some patients. This comes after a decision to combine wards.

Even apart from these criminal charges, Massachusetts has shown a seriousness about social distancing and isolation that a recent study has shown to be effective in stemming the level of the outbreak in Massachusetts nursing homes. The governor allocated $120 million in additional nursing home funding for two months starting in April, contingent on compliance with a 28-point list of infection control guidelines. A look at these guidelines, in fact, provides good advice for nursing homes trying to avoid risk during the COVID pandemic and provide foreshadowing of where we might expect lawsuits. A few of these items include:

• Close congregate spaces,
• Train and demonstrate proficiency in donning and removal of PPE,
• Provide and adhere to appropriate infection control policies,
• Ensure the ability of the staff to recognize and respond to the signs and symptoms of COVID-19 infections.

This government support of nursing homes and their requirements is in sharp contrast to the country overall, which increased burdens and expectations on nursing homes without support.

Document, Document, Document

During the discovery process, the plaintiff’s lawyers will seek documentation that proves a pattern of willful disregard for patient wellbeing. The goal of the nursing home is to provide strong documentation that shows a pattern of care for patients and regard for the requirements of statutes and guidelines.

Keeping this documentation protects patients as well, as it is easier to spot errors earlier, before anyone is seriously hurt. Examples of appropriate documentation: food and fluid intake; physician medication orders and actual delivery.

Documentation should be TIMELY, or it can appear as though the staff is either less than competent, or actively engaged in covering something up.

Communication and Training of Staff Regarding COVID-19

Massachusetts’s program demonstrates the importance of training, and while it was a government program, it could be replicated in parts by individual nursing homes.

Massachusetts was dealing with eighty nursing homes with previous infection control problems and 43 additional facilities that failed a state audit. Massachusetts targeted these facilities with onsite and virtual consultations, weekly webinars, and answers to questions regarding infection control procedures. (Massachusetts has a Senior Care Association that provided additional PPE, staff, and  Massachusetts mobilized the National Guard to provide universal testing. Failure by other states to take such measures surely contributed to nursing homes’ struggles and should be implicated in high infection and death rates).

Other communication issues concern the illness itself. Inform the physician and medical director of changes in any resident’s condition. This is a proper procedure and also allows for timely intervention that may prevent a condition from escalating. Inform the family of illnesses so that they can ask questions and prepare themselves for hospitalizations and other next steps.

Clear Policies for Infection Control During COVID-19

Protective policies are important. During discovery attorneys will look for policies that are in line with federal and states law, OBRA, including the individual nursing home and the parent corporation’s regulations.

Appropriate Medical Malpractice Insurance

This pandemic is an additional strain on an already largely unprofitable medical malpractice insurance industry.

It is important to talk to your broker about appropriate coverage. One individual in the system who is often inadequately covered is the medical director.

OBRA 483.75 holds the medical director responsible for many of its requirements. OBRA has been responsible for increased quality in nursing homes, but nursing homes don’t always understand the additional liabilities it creates.

This has led to a new spate of suits against medical directors, who are often not yet covered adequately.

Nursing homes might be able to look to their malpractice providers for information and support during this time, as their goal of reducing lawsuits is common. Malpractice agents often send guidelines from the CDC, can answer questions, assist with documents, and even assist in helping to get required resources like PPE and plasma tests.

Protect Against Medicare Survey Fines

Recent research suggests little connection between the CMS quality measures such as a nursing home’s star rating or prior infection control deficiencies, and the incidence of COVID-19. However, the defense will have to overcome juries’ biases; juries will be vulnerable to even subtle suggestions that prior inadequacies to deliver on Medicare mandates means the facility tends toward negligence and is responsible for deaths and infections. Fines for violations of regulations are easily discoverable by attorneys and are evidence of negligence.

Improved Care in Nursing Homes for COVID Patients

The best way to avoid lawsuits, and to defend against them when they are inevitable, is to provide overall improved care to patients. This will require cooperation by medical and other staff, working for the ultimate well-being of every patient. Training in recognizing signs and symptoms of COVID-19 is essential, as is follow-up in these cases. Nursing homes should have clear procedures when these signs have been noted.

Improved care is likely to show up in results from CMS inspections. Results related and unrelated to COVID should combine to show an overall picture of high standards, consistency, and follow-through.

Nursing homes have been frustrated by CMS guidance that appears punitive without assisting in the implementation. For example, guidelines were issued in early June. CMS suggested that nursing homes test all staff and residents weekly. Nursing homes were largely unprepared to implement this guideline, and there was some difficulty in getting adequate test kits. What is the best way to test weekly, and what should be done in the interim while the nursing home is waiting for the COVID test kits to come back? (An improved antigen test, which has results as quickly as 15 minutes, was cleared for use in late August, and pre-empted any contrary state or local laws.)

The guidelines also required nursing homes to report COVID data to a CDC database weekly. Tracking COVID cases is an important strategy for containing the virus. However, the CDC was apparently unprepared to help train staff at nursing homes, or to give adequate time for training.

Critically, nursing homes are required to submit to infection control inspections that are honed in on preventing COVID virus infections.

Although nursing homes have been frustrated by seemingly unrealistic deadlines, a jury will only see how critical and time-sensitive infection control was, that nursing homes knew of the virus as early as February and had time to implement increased infection control, and likely, as the defendant will stress, that good infection prevention measures should have been in place even outside a pandemic. Therefore, any failures on these inspections will be another black mark against which defense must struggle.

In the case of another outbreak or pandemic, the nursing home’s records will be scrutinized. All these actions come with the immediate threat of punitive fines and other measures including the loss of nursing homes’ operating licenses.

Manage Pre-Existing Conditions for Patients Who May be Exposed to COVID-19

The presence of pre-existing conditions, considering precedent, is unlikely to be a defense against a wrongful death suit, but managing pre-existing conditions may help prevent such deaths. 70% of nursing home patients are living with cognitive issues, 48% with dementia, so it will take special care to ensure that staff is catching symptoms and exposures to COVID.

Elderly people are often taking near a dozen medications, and their regimen must be maintained even during a COVID epidemic. Again, thinking strategically, proper care of pre-existing conditions shows a high level of care and preparedness that will go over well with a jury. 

Facilities and Staffing

As noted earlier, as the average age of a person in a nursing home grows, so do the attendant medical conditions. The complexity and needs of residents have increased, while staffing has often stayed constant. Looking at this from a jury’s perspective, it demonstrates a commitment to profitability over patient care and is surely detrimental in any negligence case.

Meanwhile, some nursing home facilities are designed in a way that can expedite COVID-19 infections.

Some of this is due to outdated codes and regulations, but nursing homes need to demonstrate there was at least concerted attention toward updating and providing the best facilities they can. This means considering the conditions. If 2-4 patients are in a small room, they will transmit COVID easily. In the Holyoke case discussed above, an element of the case is that up to six residents were moved into rooms that were intended for a maximum of four people. This action shows a willful disregard for the facts of COVID, the lives of patients, and plain common sense.

If air conditioning is below standard, windows are few and far between, and overall ventilation poor, the nursing home should show that they worked with these conditions and improved them wherever possible: opening windows when it’s not a risk to patient health, installing manual ventilation when it’s at all financially feasible, or at least attending to professional ventilation recommendations for less expensive fixes.

         PPE

Government failure to provide adequate PPE led in some cases to PPE not being worn, or lower grades of PPE being used than ought. With promises of greater PPE to come, it is important that facilities use PPE, and use it properly at all times, to avoid a negligence lawsuit. Nursing homes should also order PPE with an eye toward a continued outbreak, and future outbreaks. Despite the Holyoke case, a study showed that Massachusetts was effective in controlling COVID in nursing homes based on proper wearing of PPE, and other factors.

Conclusion

The COVID-19 pandemic has been painful to all echelons of society, but no one has paid a dearer cost than our elderly and disabled. There has been heroism by staff that isn’t as well-documented as failings, and surely most nursing homes are doing the best they can. However, the risks and stakes are very great, and it is important when trying to avoid risk to not only consider the financials but the human cost. Having an eye toward the individuals involved will in turn protect financially. The choices nursing homes make now may create resilient, caring facilities for the future. Not only residents, but staff will benefit, and we will see greater accountability. As one journal put it, “Doing so requires a new lens toward policy, collaboration, individualization, leadership, and reorganization. The time for change must be now, while we are still in the terrible grip of this crisis, and before we sink back into the complacency and habits of our pre-COVID-19 lives.”