A COVID-19 negligence suit against a Wisconsin assisted living community is just one of many legal actions facing long-term care facilities across the country.
The families of four residents who died after contracting COVID-19 are suing Country Villa Assisted Living in Pulaski, WI, over allegations that the community did not adequately protect the residents — Randolph Wichlacz, Marian and Norbert Marks, and June Martineau — from the virus, according to the Green Bay Press-Gazette.
The cases are now before the U.S. District Court for the Eastern District of Wisconsin.
Donna J. Fudge, an attorney with Florida-based Fudge Broadwater P.A., told McKnight’s Senior Living that assisted living and other types of long-term care facilities should be concerned, because plaintiff’s attorneys are willing to “disregard reality” in bringing COVID-19 negligence claims. Fudge is representing senior living communities and nursing homes across the country against similar claims.
“These claims disregard the utter reality that assisted living facilities and nursing homes were powerless to stop the COVID-19 virus,” she said.
Fudge cited several key reasons why such operators could not prevent the virus from entering their buildings and spreading. It takes only one COVID-19 carrier to bring the virus inside a building, she pointed out, and in most cases, it is impossible to identify that carrier.
“That one person could be an outsider — it doesn’t have to be an employee of the facility,” Fudge said, adding that doctors, hospice workers, newly moved in residents or even family members could be carriers, especially at the onset of the pandemic when little was known about the virus, how to contain it or how to treat it.
Research reveals 4 determinants
Pointing to research from Harvard University, Brown University and the University of Chicago, Fudge said that the four main determinants of whether the coronavirus entered a facility included where employees lived, facility location and size, county positivity rates and the number of employees holding second jobs in other healthcare facilities. This research also determined that a nursing home’s rating from the Centers for Medicare & Medicaid had no effect on whether a facility had a COVID-19 outbreak.
Invisible spreaders — individuals who are asymptomatic or who spread the virus in the 48 hours before they have symptoms — also contributed to 50% of cases.
“People were walking around like ticking time bombs,” Fudge said. “Screenings at the front door were powerless to stop silent spreaders from coming inside.”
Another handicap for long-term care facilities, especially early in the pandemic, was access to COVID-19 test kits and personal protective equipment, she said. Early supply shipments were sent to hospitals, while assisted living communities — which Fudge referred to as the “ugly stepchildren of the healthcare industry” — had to find their own supplies or wait.
“These plaintiffs’ lawyers trying to extort money is unsettling,” Fudge said. “It is going to bankrupt many in the long-term care industry — an industry already financially crippled just from surviving the pandemic.”
The blame, she said, lies with the virus, not with frontline workers.
Liability protection makes a difference
Craig Conley, an attorney with Memphis, TN-based law firm Baker Donelson, said that although he is seeing COVID-19 negligence cases filed in Texas and Florida, he is not seeing much activity related to COVID-19 cases in his area of the country. He attributes the difference to states adopting broad immunity protections for healthcare providers.
Arizona, Florida, Indiana, Montana, Nebraska, South Carolina, South Dakota and Texas are providing liability protections for healthcare providers and healthcare facilities during the declared COVID-19 public health emergency, according to LeadingAge.
And although Conley said that some attorneys will look for loopholes in the immunity laws, the optics of a COVID-19 negligence lawsuit against a facility or caregiver scrambling to care for older adults in the middle of a pandemic was enough to make some attorneys back away.
“It’s a very high standard to show that you allowed someone to become infected with COVID,” Conley said. “It’s just a very high threshold to meet.”
Also, he said, attempts to take cases to federal courts under the Public Readiness and Preparedness (PREP) Act have been remanded back to state courts.
Wisconsin case details
In the Wisconsin COVID-19 negligence case, all four assisted living residents died in spring 2020, at the beginning of the pandemic. State regulators first investigated the community after 10 residents died during a coronavirus outbreak that infected 46 residents and staff members.
The state fined the community $7,600 for violations. County Villa was barred from admitting new residents until the violations related to staffing and regulatory compliance were corrected. The Wisconsin Division of Quality Assurance, Bureau of Assisted Living, investigated complaints related to providing adequate staffing to meet residents’ personal care needs and supervision.
The state determined that a “lack of health monitoring” led residents to contract the virus. The survey also indicated that the community did not suspend communal dining and group activities, despite recommendations from the Centers for Disease Control and Prevention, and instead relied on social distancing and limiting the number of residents in communal areas.
Caregivers also alleged that, due to staffing challenges, supervisors asked them to work after testing positive for COVID-19. President Chad Reader issued a statement to the media in 2020 that the facility moved quickly to adapt to changing state and federal health guidelines and put its emergency protocol into place. That included isolating residents in their rooms to prevent the spread of the virus.
“Our response was far from perfect, but we did the best job we could considering this difficult and unprecedented emergency,” Reader said in 2020, according to a statement. “What we’ve learned is that, in the future, the state of Wisconsin will modify and adjust its emergency response plans in order to better assist long-term care facilities like outs in order to protect the health and safety of our most vulnerable population.”
‘Save the evidence’
Fudge said that providers should save data of their efforts during the pandemic, including details of their attempts to purchase PPE, requests to government and public health officials for test kits, and steps taken to comply with local, state and federal guidance.
“Save the evidence,” she said.
And for providers hit with COVID-19 negligence claims, she suggested hiring a law firm that has done its research into the pandemic.
Country Living Assisted Living did not respond to requests for comment by McKnight’s Senior Living by the production deadline.