Nursing home and long term care facilities are particularly vulnerable to the coronavirus due to advanced age of the typical patient population. Many of these elderly residents have chronic conditions and serious health problems that leave them ill-equipped to fight the disease. According to recent reporting, as much as one third of corona virus deaths are nursing home residents or workers. In New Jersey, a staggering 52% of reported deaths in the State are nursing home residents and workers.
The outbreak has, and undoubtedly will continue to, result in litigation against long-term care and skilled nursing facilities. Indeed, there have already been lawsuits brought in New Jersey against nursing home and long term care facilities alleging that proper protective equipment was not made available. It is anticipated plaintiffs will pursue a variety of theories including inadequate infection control programs, insufficient skilled nursing staff to detect and escalate care, and implementation of policies and procedures.
In addition, nursing home facilities that receive federal funds through Medicare and Medicaid must follow strict regulatory guidelines, commonly referred to as “F-tags.” During the pandemic, the Center for Medicare and Medicare Services (CMS) has periodically issued guidance to nursing homes. Among others, nursing homes are currently required to establish and maintain infection prevention and control programs and adequate “surveillance designed to identify possible communicable diseases infections before they can spread to other persons in the facility.”
Many states are considering legislation or have enacted laws that that would immunize health care providers and facilities from lawsuits arising from the coronavirus pandemic. On April 13, 2020, the New Jersey legislature passed a bill granting blanket immunity from criminal and civil lawsuits related to the COVID-19 emergency, retroactive to March 9, 2020. The legislation was intended to protect doctors, nurses and other healthcare providers from malpractice lawsuits for acts or omissions undertaken in good faith for medical treatment provided in response to the COVID-19 pandemic. Legal immunity was also granted by the federal government under the Public Readiness and Emergency Preparedness (“PREP”) Act to facilities from liability for claims related to their use of federal measures to combat the COVID-19 emergency.
However, it is unlikely that either legislation would protect long term care facility from ordinary negligence claims arising from general operation of the facilities. In order to avail themselves of the statutory immunities, long term care facilities and providers must prove a nexus to medical care rendered in connection with treatment of COVID-19 patients. Nursing homes should also endeavor to provide written documentation of efforts to mitigate risk to its residents and workers and efforts to follow CMS guidance.
HKMP’s litigation attorneys handle the defense of long term care facilities and nursing home cases. Contact John F. McKeon (jmckeon@hkmpp.com) or James L. Fant (jfant@hkmpp.com) for assistance.
