On the Pulse… Marshall Dennehey’s Long-Term Care Practice Group and the COVID-19 Pandemic

It has been more than four months since the first case of COVID-19 in the United States was diagnosed on January 20, 2020, in Washington State. It was on February 20^th that a long-term facility in that state brought to our attention the need for resources in these facilities. Yet, this seems to have been forgotten until recently. Now that hospital medical professionals on the battlefront of COVID-19 seemingly have the resources they need, the news is turning to the crisis in assisted living, long-term care and rehabilitation facilities. There had been a growing positive public sentiment for hospital workers, as evidenced by cheering crowds and air force flyovers, but much of the news surrounding long-term care facilities has not shared that sentiment. One thing will be shared. The pandemic will lead to an increase in health care litigation, and assisted living, long-term care and rehab litigation will be no exception.

On April 19, 2020, CMS announced new regulatory requirements that will require nursing homes to report cases of COVID-19 in their facilities directly to the CDC—which was previously optional. This measure expands the already-existing requirements for reporting infectious diseases to state and local health departments. This new guidance is meant to assist surveillance of COVID-19 locally and nationally, monitor trends in infection rates, and inform public health policies and actions. In turn, CMS plans to make the data publically available. CMS and CDC will soon provide nursing homes with specific direction on standard formatting and frequency for reporting this information through the CDC’s National Health Safety Network system. It has already been reported that as many as 40% of the COVID deaths around the country have been in these facilities. While some states have provided a level of immunity, other states have not. Jurors are going to be asked to consider these immunities as well as statistics, staffing problems, shortages of PPE, and even things like confusing and contradictory guidance at the state, federal and local levels.

There are roughly 2.2 million residents currently in long-term care in the United States. While lawsuits against long-term care providers are nothing new, the challenges to this industry posed by COVID-19 are unprecedented in many ways. There are at least 15 states which have enacted some type of immunity for health care providers related to professional conduct in response to COVID-19: Alabama, Arizona, Connecticut, Georgia, Illinois, Kentucky, Massachusetts, Michigan, Mississippi, New Jersey, New York, Nevada, Rhode Island, Vermont and Wisconsin. Pennsylvania has an executive order for limited immunity as well. Many others are facing pressure to provide such protections.

Questions relating to the immunity protections for COVID-19 remain, such as: 

1. Are nursing homes included in the immunity protections?
2. How far does the immunity extend?
3. What will be considered protected care/actions? and
4. What will fall outside the protections as unrelated to the COVID-19 emergency?

Immunity orders and legislation are often not explicit in terms of whether nursing homes or other long-term care providers are protected at all. If such providers are covered, it is unclear where these protections end. For example, many protections cover “good faith” efforts but do not provide further guidance on what would be considered compliance verses “gross negligence.” In states like New York and New Jersey, nursing homes were ordered to accept COVID patients. In other states, COVID status was often refused or not disclosed prior to admission. The availability of PPE has been limited, especially in the long-term care setting.

Regardless of the applicability of COVID immunity provisions, long-term care providers are likely to see an increase in claims/lawsuits arising from associated issues, like staffing shortages, increased falls, wounds, unrelated infections and other injury/deaths. In New York and Ohio, there have been more than 6,000 combined deaths from COVID-19. In Pennsylvania, greater than 65% of the COVID deaths have been in nursing homes. More than 3,200 New Jersey nursing homes residents have died from the COVID virus. In Delaware (58%) and Maryland (46%), a high percentage of COVID deaths have occurred in long-term care. These statistics are staggering and do not reflect potentially associated outcomes from things like falls, wounds, etc. The pressures of the current pandemic are not limited to COVID alone but, rather, will likely spill over into every facet of resident care during this challenging time.

These are unprecedented times. Present challenges for the long-term care industry must be proactively addressed by experienced professionals caring for the residents on the front lines, and behind the scenes in terms of risk and liability management. Organization, preparation, documentation, and experience will be key in handling the unique pressures directly and indirectly exerted by claims and litigation arising from this pandemic. 

We at Marshall Dennehey have a long history of serving the defense of these types of licensed facilities. The firm’s dedicated Long-Term Care Liability Practice Group has identified attorneys in each of its geographic locations who concentrate their work in defense of such facilities. Every year since the practice group was created, we have tracked long-term care litigation, and without a doubt, it is on the rise. From 2016 to 2019, the firm has seen a 68% increase in the number of long-term care litigation files handled, and we anticipate that this increase will grow exponentially in the near future. We are prepared. As part of the firm’s COVID-19 Task Force, the practice group has developed a COVID-19 LTC Task Force that is ready to assist, investigate and defend these claims.

*Leslie Jenny and Lynne Nahmani are Co-Chairs of the firm’s Long-Term Care Litigation Practice Group. Leslie is also managing attorney of our Cleveland, Ohio office and Chair of the Affordable Care Act Practice Group. She can be reached at 216.912.3805 and lmjenny@mdwcg.com. Lynne is a shareholder and works in our Mount Laurel, New Jersey office. She can be reached at 856.414.6022 lnnahmani@mdwcg.com.

_{Defense Digest, Vol. 26, No. 2, June 2020 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2020 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}