Regardless of whether COVID-19 immunity laws from to fruition, assisted living operators should take action to prepare for inevitable negligence suits through “impeccable” record-keeping, according to the author of a JDSupra article.
The Center for Disease Control and Prevention created guidelines to help assisted living communities protect their residents during the pandemic, encouraging providers to review state guidelines as well, pointed out Shawn Rader, a shareholder in Orlando, FL-based law firm Lowndes. In addition, he said, 27 states have enacted COVID-19 guidelines specifically for assisted living communities, covering everything from visitors to signs, emphasizing the importance of communication about the status of COVID-19 in a community.
Rader wrote that if the push by Senate Majority Leader Mitch McConnell (R-KY) to enact a shield from liability for long-term care facilities, then assisted living operators should prepare for the “inevitable” negligence suits “by keeping impeccable records of their efforts and actions taken to comply with both federal and state guidelines.”
He suggests photographing signs at the entrance to communities and documenting communications to family members regarding COVID-19 cases in communities.
“It might even be of help to have one’s liability carrier effect a Zoom conference where the carrier representative can give advice based on past experiences regarding documentation,” Rader wrote, indicating that it is in an insurer’s best interest to have communities avoid liability for its actions — or inactions.
Long-term care industry advocates have been calling for COVID-19-related legal immunity protections, and McConnell previously has said that the next coronavirus relief package must contain them. The $1 trillion coronavirus relief package introduced in July by Senate Republicans proposed 5-year lawsuit protections for healthcare providers — entities and individuals — as well as other businesses and schools.
Several states have enacted civil lawsuit protections for businesses and individuals, but they would not apply in cases of gross negligence, misconduct or recklessness.