As COVID-19-related lawsuits are being filed against senior living operators, operators can take practical steps to reduce their litigation risk in the wake of the pandemic, according to an attorney who spoke with McKnight’s Senior Living.
In one recent legal action, a senior living operator is facing a $1 million lawsuit brought by a family claiming neglect in the death of a 83-year-old resident who contracted COVID-19. In another, an employee of a different senior living community has filed a lawsuit alleging that she was fired in retaliation for lodging a whistleblower complaint and taking sick leave.
The wrongful death suit against The Waterford at College Station, operated by Dallas-based Capital Senior Living, also named in the lawsuit, alleges that late resident Joe R. Boothe received “inadequate and substandard care” after staff members left him isolated, causing him to have an infection, dehydration and malnutrition. He died April 5.
According to the lawsuit, Boothe’s family was told in late March that residents were restricted to their rooms due to a “stomach bug” going around the building. The family alleges they were misled about the spread of COVID-19 in the facility and the extent of Boothe’s illness.
The facility “failed to implement the proper infection control protocols necessary to protect their residents,” the suit states. The facility also “failed to recognize, recklessly disregarded, or attempted to cover up the severity of the spread of the COVID-19 virus” even after residents and staff exhibited symptoms.
The suit further alleges that it was only after an “outcry from the family of other residents” that the community began “selectively notifying some families that seven residents had died.” In addition, 13 out of 31 employees reportedly were infected, and 68% of residents tested positive.
The suit, filed by Boothe’s widow, Margaret Faye Booth, seeks more than $1 million and a jury trial.
A representative for Capital Senior Living declined to comment to McKnight’s Senior Living.
Attorneys for the Boothe family did not respond to a request for comment, but in a prepared statement said Boothe’s case “is one of the clearest cases of gross neglect” ever seen, according to West, Webb, Allbritton & Gentry, the College Station, TX, the law firm representing the family. The statement said Boothe died because “he was neglected and left alone to suffer. The Waterford, which was inundated with COVID-19 issues, and resulting deaths, can no longer hide what they failed to do for the Boothe family, and for many more.”
The lawsuit is pending in district court in Brazos County, TX.
Former worker said she complained of large gatherings
In another COVID-19-related case, former employee Candy Sizemore-Harvey is seeking $950,000 in a lawsuit alleging she was fired by Senior Haven after complaining that large gatherings at the senior living community placed residents at risk for contracting and spreading COVID-19, according to The Oregonian / OregonLive.
A week after complaining about the gatherings to superiors, Sizemore-Harvey’s physician advised her to stay home from work because her asthma placed her at higher risk for complications from COVID-19, according to The Oregonian. Sizemore-Harvey complained of a sore throat and cough, was told to report to work anyway by management, and then sent home. Six days later, on March 30, according to her lawsuit, she was fired in retaliation.
The lawsuit was filed in Multnomah County Circuit Court.
Operators can reduce litigation risks
Hope S. Freiwald and Monica Gorny of Philadelphia-based law firm Dechert LLP recently offered guidance to senior living communities on practical steps they can take to reduce litigation risks in the wake of the pandemic.
Although not addressing any specific lawsuit, Friewald told McKnight’s Senior Living that it’s never too late for operators to try to remediate and show good faith.
“Even if they were subject to litigation, the fact that they identified the problem, dealt with it in a responsible, proactive, ongoing basis and really tried to learn from their mistakes and do the right thing, and be transparent about it — all of those things, even if an actual lawsuit is filed, help create a better defense story and posture,” Friewald said.
In a JD Supra article, the attorneys highlighted three litigation defense basics:
- Transparency and willingness to explain challenges and share responsibility with external stakeholders;
- Complete and detailed documentation demonstrating good conduct; and
- Adherence to public health guidance.
Friewalld said that even if a community was caught off guard, short-staffed and with a spike in cases, now is the time — with the new Centers for Medicare & Medicaid Services reporting requirements coming out for Medicare and Medicaid providers — to take a more proactive position and change the narrative “even if they’ve had some baubles along the way.”
The types of claims filed against operators will depend on how communities proceed going forward and the story they are able to tell, what they are able to talk about, what they are doing right and the challenges they are facing, Friewalld said. Senior living has an uphill battle to fight in sharing its challenges compared with hospitals, she added.
“The communication piece is important. There are so many challenges that the lay public may not appreciate,” Friewald said. “It’s important for facilities to make sure their challenges are well appreciated and their best efforts are appreciated.”
Dechert LLP is hosting a webinar on “COVID-19 Litigation Risks for Nursing Homes and Other Senior Living Facilities” on Tuesday, May 12, at 11:30 a.m. EDT. The webinar will focus on recent development, including governmental investigations and potential civil litigation and criminal inquiries field by heightened media scrutiny.
