COVID-19 Litigation and the Nursing Home Industry

Juliann O'Meara , Stephen J. Henning


September 8, 2020

Nursing homes and managed care facilities across the country have been coronavirus hot spots, accounting for hundreds of thousands of cases. Often filled with elderly patients with underlying health conditions living in close quarters, these facilities have been a perfect breeding ground for the virus. Along with the cruise ship industry, owners and operators of these facilities were among the first targets of pandemic related litigation. This first wave of cases includes:

  • In New York, an action against a nursing home facility and rehabilitation center for negligence and wrongful death. The plaintiff alleged that their relative contracted and died from COVID-19 while being treated by the facility. 
  • In Oregon, an action for elder abuse and negligence against a senior living facility, seeking damages in excess of $2.4 million. This same facility was the target of a separate wrongful death action filed days before as a result of alleged “incompetent response to the pandemic.”
  • A nursing home facility in Illinois faces an action for failure to take required COVID-19 precautions, causing an outbreak at its facility.
  • A class action in New Jersey for medical malpractice, alleging defendants failed to adequately protect the plaintiff class from exposure to COVID-19 at their nursing home facility, which led to infections and the named plaintiff's death.
  • In Kansas, a plaintiffs' relative contracted COVID-19 at the defendant's nursing home and later died. An action for medical malpractice has been filed against the nursing home facility.
  • An Indiana nursing home facility is facing a lawsuit demanding injunctive relief to prevent it from relocating current residents to other facilities to accept the transfer of COVID-19 patients.
  • A wrongful death and gross negligence action filed against a nursing home in Texas alleged that it disregarded the safety of its patients and staff by failing to provide personal protective equipment (PPE) during the pandemic. As a result, a certified nurse’s aide allegedly had to perform his job without proper PPE and died of COVID-19-related pneumonia.

The nursing home industry provides a vital service with fewer resources than many other health care institutions. If lawsuits rise to the point that insurance premiums and the cost of resolving claims force managed care facilities into insolvency, what will take their place? To avoid this result, there are numerous efforts to insulate the industry from civil liability.

The Centers for Disease Control and Prevention (CDC) stated that 2.1 million individuals—approximately 0.6% of the United States population—live in nursing homes or residential care facilities. The number of these individuals impacted by COVID-19 is staggering. According to the Foundation for Research on Equal Opportunity, as of mid-July, nursing homes and assisted living fatalities accounted for roughly 45% of all COVID-19 deaths in the United States.

Additionally, almost 70% of nursing home or long-term care facilities in the United States are privately owned, making the impact of a wave of litigation more profound. Private owners will be more directly impacted by lawsuits than public entities, which have the ability to self-insure. While public hospitals will not go out of business, private facilities cannot make up operating losses through direct public aid. And senior care in the United States depends heavily on these facilities staying open.

Lawmakers face the difficult task of addressing future liability issues for nursing homes and striking a balance between providing immunity and possibly excusing negligence, or helping these facilities fight off claims in court. If a large number of insurers are unwilling to enter the nursing home/senior living insurance market because of potential liabilities, the industry may not continue to operate. Over the past few months, the nursing home industry has been pushing states to provide civil immunity, either through legislation or governor's orders.  

Currently, at least sixteen states have passed legislation providing some type of immunity to healthcare providers and nursing homes, largely relying on a “good faith” standard. Ten additional states are seeing intense lobbying efforts for these immunities, and it is likely that more will grant immunity during the pandemic. In a few states that have not passed legislation or executive orders for immunity, there is existing legislation to grant immunity to health care providers during states of emergency. Mark Parkinson, president of the American Health Care Association, which represents more than 14,000 for-profit nursing homes, said, "Long-term care workers and centers are on the frontline of this pandemic response and it is critical that states provide the necessary liability protection staff and providers need to provide care during this difficult time without fear of reprisal."

Those who oppose granting these facilities immunity for COVID-19-related claims argue that providing legal immunity to thousands of private companies is dangerous. They contend that the pandemic has exposed long-standing problems in the industry, such as staffing shortages and infection control violations, and that limiting legal liability makes it harder to hold facilities accountable now and in the future. Opponents of legal immunity also worry that oversight is already at an all-time low. One of the most important sources for nursing home complaints is family members of patients. During the pandemic, facilities have limited family members visitation to protect residents from potential infection. As a result, standard of care violations may already be going unnoticed and unpunished.

Even if immunity is granted, most proposals are limited to claims for ordinary negligence or failure to meet basic the standard of care. Lawsuits for cases of "gross negligence" or extreme neglect would be allowed. Since gross negligence claims are often not covered under professional liability policies, if legislated immunity causes an increase in lawsuits based on this standard, the impact to the industry could still be severe.

Given the enormity of the problem, a single solution may not resolve the industry’s challenges. Regardless of whether some type of civil immunity is implemented, owners and operators need to follow best practices for infection control and stay current with local epidemiological data to determine visiting policies and the proper level of PPE.

It is critical that health care providers enact smart risk management tools to eliminate or minimize exposure and to ensure a successful result when claims are made. These include:

  • Communication: Ignored phone calls, emails and requests for information by residents’ families produce raw emotions and anger. This is often the first step towards a claim. It is never too late to enact solid communication strategies.
  • Documentation: Proper documentation is vitally important in defending the facility’s care and treatment. It is important for administration to regularly meet with staff and review the facility's documentation policy, especially in the wake of COVID-19, and revise that policy if necessary.
  • Staff meetings: Regular meetings between staff and administration keep the lines of communication from the top down open. This provides the staff confidence, knowing that the facility fully supports them during the stressful and long litigation process.
  • Risk management: When claims arise, it is important to engage counsel early in the process for a host of reasons. Privilege issues aside, working with counsel can help identify issues and craft strategies to manage the facility's risk. Counsel that understands the nuances of senior living, health care and virus-related litigation claims can advice how to best approach and resolve complex issues. This includes early discussions to resolve claims, pre-discovery motion practice, or developing a strategic plan to coordinate the defense of more than one COVID-19-related lawsuit for a facility.

Increased media focus on nursing home and senior living facilities as ground zero in the pandemic, coupled with the staggering number of positive diagnoses of patients and workers in these facilities will undoubtedly translate to claims. At the same time, these facilities play an absolutely vital role in the health, safety and welfare of the aged. How the immunity battle plays out on the legislative front remains to be seen, but these facilities need to implement best practices in risk management to minimize exposure.

Juliann O’Meara is a partner at Wood, Smith, Henning & Berman LLP who specializes in medical malpractice, health care, senior living and nursing home issues.
Stephen J. Henning is a founding partner at Wood, Smith, Henning & Berman LLP.