First wrongful death claim against Kirkland facility over COVID-19 could signal more litigation ahead for nursing homes

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By Sarah Downey | Nothern California Record | April 13, 20202

Tony Chicotel

As the coronavirus pandemic continues to afflict nursing home residents across the country, facility owners are starting to face negligence litigation for alleged failure to guard against the spread of infection.

In the wake of a $611,000 fine for its coronavirus outbreak response, The Life Care Center in Kirkland, WA, on Friday was sued for wrongful death in what is believed to be the first suit against the facility where at least three dozen residents have died.

“Our hearts go out to this family and the loss they have suffered during this unprecedented viral outbreak,” Leigh Atherton, director of public relations for Life Care Centers of America, said in an email response to the Northern California Record. “We are unable to comment on specific legal cases that are pending, but we wish this and all families peace. The loss of any of our residents at Life Care Center of Kirkland is felt deeply by us.”

In Tennessee, an attorney is preparing a suit against the Gallatin Center for Rehabilitation and Healing, on behalf of families whose loved ones died or contracted COVID-19, as well as employees.

“I believe the claims relating to coronavirus in long term care facilities will revolve around the safeguards the facilities had in place for protection, and control of infection,” Steven Levin, of Levin & Perconti, told the Record.

“Was there an appropriately safe system in place to prevent everyday viruses and bacteria, and was it in place on or before the coronavirus started? If they weren’t taking proper precautions, there could be a case,” Levin said.

Potential litigation would be more directed at the institution rather than the direct health care providers.

“It’s not wise to sue the people who are working there, but we’re not as charitably disposed to institutions who have not enacted proper safeguards to protect their residents,” Levin said.

Last month, the U.S. Centers for Medicare & Medicaid Services (CMS) began issuing directives designed to curtail the spread of COVID-19, including prohibiting family members from visiting.

Levin says that also took away the vigilance family members can provide to make sure their loved ones receive proper care.

“I fear what might happen, when there are no longer families visiting,” Levin said. “I hope I’m wrong, but many residents will suffer all kinds of neglect, because the facilities won’t have the families policing them and staff will be additionally stressed, and that has real potential to be a perfect nightmare.”

While the risk of lawsuits against health care facilities is high, proving negligence is another matter, Luke Wake, senior staff attorney at the National Federation of Independent Business (NFIB), told the Record.

“For that kind of lawsuit to be successful, there has to be actual negligence in the way they are handling operations, are they taking precautions and doing the right things to protect these vulnerable populations?”

“All of these folks are doing their best, there are plenty of attorneys who can file these suits, but I have a hard time seeing a jury being sympathetic to that if they are taking every precaution,” Wake said.

Still, the potential for litigation is significant, Tony Chicotel, staff attorney with California Advocates for Nursing Home Reform, told the Record by email.

“While CMS and California DPH (Department of Public Health) have relaxed a bunch of standards and rules, all providers are still expected by law to act reasonably. The obvious risk is for facilities that knowingly admit COVID-19 residents but don’t do a very good job of infection control and end up with a massive outbreak as a result,” Chicotel said.

“Some facilities are claiming the State has ordered them to accept COVID-19 patients but that is not true. Nursing homes considering the financial windfall for taking COVID-19 patients should also be accounting for the substantial risks of lawsuits. There are risks regarding lawsuits from staff in addition to infected residents. And then there are other risks — the neglect some residents may be experiencing due to understaffing exacerbated by COVID-19, the lack of accommodating virtual visitation for concerned families, and the failure to timely disclose outbreaks to the public health authorities and to residents and families.”

With patients facing more risks, it only increases the potential for litigation.

“The most important thing for people to know is how any nursing home is doing,” Chicotel said.

“That would depend on staff showing up for work and their morale, whether there are any COVID-19 outbreaks or the facility is going to accept COVID-19 residents, and the efforts made to keep the quality of life in the facility relatively high. It looks like any COVID-19 outbreak takes over a nursing home like a conflagration, so the most important thing right now is to keep it out of the building.”

“Families are being asked to make very difficult decisions about whether to leave loved ones in a nursing home where there is unprecedented risk of harm versus bring them home where there may not be enough support to meet the resident’s care needs.”

“It has never been a worse time to be a nursing home resident,” Chicotel added.