As Florida assisted living communities and nursing homes seek blanket immunity from COVID-19 lawsuits, a Fort Lauderdale assisted living and memory care community is expected to face a lawsuit following the death of a resident.
Lee Friedland, of Fort Lauderdale, FL-based Friedland & Associates, filed a notice of intent to sue Atria Willow Wood on behalf of the family of Richard Curren, 77, who died March 17 at the Broward County community. Curren was living there with his wife, Sheila.
Friedland told McKnght’s Senior Living that what makes the case unique is that Florida Gov. Ron DeSantis went on record calling Atria Willow Wood “quasi-criminal” in its failure to protect the residents in the community. In a March 23 press conference, at a time when the state was not publishing the names of long-term care facilities with COVID-19 cases, DeSantis said Atria’s handling of the novel coronavirus pandemic “fell below the standard of care” and “could be” criminal. DeSantis accused the community of not screening staff members and construction workers, exposing residents to the virus. At the time, Atria responded that the governor’s statement was “a completely inaccurate representation of our response to protect the health and safety of our residents” and said the community screened all visitors “before any state guidance on this was provided.”
Friedland said it is his position that assisted living communities and nursing homes are uniquely situated in the context of pandemics and disease processes to be prepared for contagions in their environments.
“Richard Curren, he enjoyed the facility. He had no prior problems there. He seldom left the facility,” Friedland said. “He contracted the virus based on exposure from employees or vendors and died within days of going to the hospital.”
Friedland contends that Atria Willow Wood, which was undergoing renovations, was negligent in failing to appropriately lock down the facility to prevent outside vendors from bringing the virus into the facility, not providing employees proper personal protective equipment, and not having regular screening processes in place to prevent the spread of the novel coronavirus.
The filing of this lawsuit follows Orlando-based law firm Morgan & Morgan’s announcement of its intent to sue two nursing homes over alleged mishandling of COVID-19 outbreaks, as well its intent to challenge any attempt to grant blanket immunity to nursing homes.
Atria Senior Living operates independent living, assisted living, supportive living and memory care communities at more than 215 locations in 27 states and seven Canadian provinces.
A spokesperson for the company told McKnight’s Senior Living that it cannot comment on pending litigation but indicated that the facility began screening all visitors on March 4, well before any state guidance was provided, and prohibited anyone who failed a screening or developed an illness from entering the community.
Atria said it received confirmation of its first confirmed case of COVID-19 on March 16 from the Department of Health office in Broward County.
“We immediately escalated our safety and infection control protocols and expanded our extensive emergency scenarios planning,” the statement read.
Atria went on to state that the Florida Department of Health’s Incident Management Team spent 36 hours in the community and “indicated its satisfaction with our community’s management and response efforts” when it left the facility on March 22.
Representatives from the state Department of Health were on site to review protocols on March 28 and May 16 and “were supportive of our ongoing efforts and provided positive feedback,” according to the company. The Florida Agency for Health Care Administration, which licenses and regulates the state’s health facilities, was on site April 1, May 1 and May 4 and “continues to be complimentary of our response,” Atria’s statement said.
The Florida Health Care Association and LeadingAge Florida both sent letters to the governor requesting immunity for providers across the continuum of aging services from liability that may result from treating individuals with COVID-19.
The associations indicated that it would be unfair to hold operators legally liable due to shortages of testing and personal protective equipment, as well as changing state and federal guidelines and staffing shortages due to illness.
Friedland said it would be ironic if DeSantis signed legislation “protecting the facility he said should be criminally liable.”
“We know that assisted living facilities and nursing homes need to be prepared for the possibility of a contagious outbreak,” he said. “I guarantee within these facilities they have contingency plans in place that relate to this. Our argument is, that was not put in place.”
As of now, at least 20 states have issued executive orders that limit, to some extent, the liability of long-term care facilities and/or healthcare workers for care provided during the coronavirus pandemic. Those states include Alabama, Arizona, Connecticut, Georgia, Iowa, Illinois, Indiana, Louisiana, Kentucky, Massachusetts, Maryland, Michigan, Mississippi, New Jersey, New York, Nevada, Rhode Island, Vermont, Virginia and Wisconsin.
Trade organizations also have sent letters to the governors of Pennsylvania, California, Missouri, Tennessee and Washington urging the adoption of legal immunity measures.
The Florida Life Care Residents Association, which represents assisted living and nursing home residents, sent a letter to the Florida governor stating that granting blanket immunity “would not be a prudent decision.” AARP also rejects proposals to grant immunity from COVID-19 related lawsuits.
Authors of a JDSupra article urged long-term care provider organizations in states that have not yet enacted liability protections to contact their lawmakers to “effectively put long-term care facilities and providers in an optimal position to defend themselves against inevitable claims for care provided during these uniquely difficult circumstances.”