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https://www.nytimes.com/aponline/2020/05/03/business/bc-us-virus-outbreak-nursing-home-lawsuits.html


The AP has reported that several states have passed, or are considering legislation that would protect SNFs and other long term care facilities from both criminal charges and civil lawsuits related to Covid-19 deaths. There have been over 19,000 reported deaths in US facilities, with the actual number probably being much higher. The American Health Care Association (the industry’s lobbying group) has supported, and drafted, this legislation, saying that the pandemic is an unanticipated emergency, basically an”Act of God”and they cannot be held liable for anything other than gross negligence. Watchdogs and families, etc. say that the lockdowns have prevented inspections and cite a lack of communication about testing, quarantine procedures and other problems.
What do y’all think? Have you been satisfied with communication from your LO's facility? Have you been able to observe their practices and have you felt they have done everything possible? Would you ever initiate a criminal or civil suit against the facility? Should long term care facilities just be given a blanket legal free pass for every decision they have made during this epidemic?

I'm of the mind that they should be protected. They were completely overwhelmed, and some of their staff either couldn't work or became sick. This is far different than the seasonal flu, which comes around like clockwork every year and is a known quantity. Many NH residents have DNR orders in their paperwork. So, many were not given any "heroic" treatment to save them because of this, but many of the facilities couldn't even do this had they wanted to. I think people are reacting to being forcibly separated from their LO and being denied a very significant farewell -- so they are emotionally devastated -- and understandably so. There was no control, no ability to predict anything, no time to process what was happening. My MIL is in a very well-run facility that seemed to have had a plan in place and they were locked down tight immediately. We communicate in FaceTime. They haven't had a single case of Covid-19 to date. Suing the facilities would be wrong on every level. If people are allowed to sue for deaths that weren't under normal circumstance, no one would open up a NH due to liability exposure. Or they would and the sky-high price to insure them would be passed on to the residents.
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Reply to Geaton777
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TG my Mom passed and I didn't have to deal with the shutdown concerning her. I would have been lucky though, it was a 39 resident facility. Moms room was on the outside so I could have visited via window. Actually, I have friends that have parents in that facility and thats what they are doing. Mom got good care there, so I wouldn't have worried about that.

No, I don't think care facilities should be held accountable for deaths caused by COVID. They are caring for the populations most vulnerable. Those with already compromised immune systems. Its what it is. There's always someone wanting to sue because they won't except a LO died. Anyone can sue, but it costs money on both sides. This will keep thst from happening and tying up our court system.
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Isthisrealyreal May 3, 2020
But a lot of money helps them feel better about the death.
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I agree with the states. During a pandemic, there are not enough caregivers to watch over everyone. The disease happens so quickly that people die while waiting in the ER hallways. Staff are overwhelmed. That is called death by omission. It is not maliscious in nature and not due to gross negligence .
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Reply to MACinCT
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When Hurricane Katrina happened there were several lawsuits related to deaths both at hospitals (Memorial Baptist) and several SNF/NHs in the New Orleans area. I think it’s relevant to look at what happened with those as to what’s perhaps likely to happen to Covid related lawsuits.

for Memorial, 45 deaths, with arrest and criminal charges (2nd degree murder) 4 counts against an MD (Pou) and 2 RNs (Budo & Landry who later got charges dropped for testifying against Pou). The then AG Charles Foti went big time on TV on the deaths. Of all the staff working at Tenet Memorial, it was only 1 female MD & 2 female RNs charged and all the experts (hired by AG) were men; this was not lost on the public. Huge support for Dr. Pou, we went to one at City Park which raised over 100k that event alone. Her legal fees were 450k. When it was all said & done, the grand jury refused indictment. Foti lost his election and his handling of Memorial was very much used against him by his opponent (Caldwell) and grassroots women’s and health care organizations. Full page ads against Foti ran all across the state, “support Dr Anna” T shirts wearers showed up at his campaign stops. There was a line up of these in front of a Foti fundraiser and folks just turned around rather cross a barricade of Pou supporters than get called out & iPhone foto’d for attending. She later sued him for libel too.

for the NHs, the one (St Rita’s NH) that actually went to criminal trial, the owners, the Manganos, were acquitted on all charges... wrongful death & negligent homicide. It was 32 deaths at the NH. Cost them a fortune & they too had fundraisers. After that acquittal, all the other death at a NH cases got shelved. Various DAs refused indictments.

There were settlements made to those who sued Tenet. Tenet, based in Dallas, sold off all their hospitals in the area in 2006, so less than a year after Katrina. Tenet had a class action filed against them for those (nonTenet employees, visitors, patients) stranded at Memorial. Settlement was 25M and done in 2011 the day before jury selection was set to start. 5 years after Katrina.

LA has Since put into state administrative code that health care workers have immunity from civil lawsuits arising from mass casualty situations. Covid, I’ve been told, would fall into this

My hubs old internist worked Memorial over Katrina, & what he was concerned about was the fall out lawsuits would cause the next time..... that if you start suing MDs & other health care workers and hospitals trying to stay open & do their jobs under extreme conditions, the next time a hurricane comes in, staff will NOT show up for work and hospitals will close ahead of a storm. And He was spot on, as that is what has happened, even with civil lawsuit immunity.

So watch what you wish for, cause Covid-19 is not going to be imo a one & done. This is just the first big wave, a Covid tsunami, followed by smaller waves / outbreaks. Then another big wave coming next Fall / Winter. Rinse and repeat, for another couple of years. We cannot afford to have hospitals and facilities close and health care workers stop working out of fear of looming lawsuits.
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Reply to igloo572
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My mother's ALF has gone above & beyond the call of duty to protect all the residents from the virus. There is literally nothing more they can do, in my opinion, to protect these elders.

We, on the other hand, CAN take our loved ones OUT of these facilities if we so desire. We have that option. If we choose to leave them where they're at, we also need to release the facilities from liability if our loved ones die from Covid-19. I would never think to sue my mom's ALF if she were to pass away from the virus. It would indeed be an 'act of God' if she did.

If we are not comfortable giving the facilities a 'blanket legal free pass for every decision they have made during this epidemic', then again, we are 100% free to go pick up our loved one and take them home with us. Bearing the responsibility for their care & safety entirely ourselves. And of course, there is no guarantee that we won't bring the virus into our homes and pass it on to our loved one. Would that then make us 'guilty' of negligence or something criminal that we'd want to sue the facility for? Should we blame ourselves in such a situation? My answer is No.

Again, this is just my personal opinion on the subject, and not necessarily yours or anyone else's.
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Reply to lealonnie1
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It would never occur to me in a million years to sue the place that is looking after my mom right now. They are doing their level best to keep her safe and looking after her emotional needs now that family cannot come in at all. If one of the caregivers (who are amazing where mom lives) accidentally brought it in, it would be no different than if I brought it in were I able to go visit. Totally an "act of God". It just so happens that those most at risk are confined to one space and so are their caregivers. There is absolutely no way I could care for my mother at home. She is too disabled and has dementia. Her facility is doing the best they can and I know that with all my heart.
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FloridaDD May 4, 2020
Really, really glad your facility is doing all they can.  I suspect many are, but some are not.
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It never ceases to amaze me that people get angry at anyone because an old, sick person warehoused in a facility because they can not care for themselves and their families can not care for them die.

Most have no quality of life and if they were able to say what they wanted it would be to get this over with.

If the government doesn't step in and protect them, there will be no affordable facilities. Besides most are on Medicaid and who in their right mind files a lawsuit against themselves and their children and grandchildren, because that is who will be paying the price. These people are already being taken care of by the taxpayers.

I believe that facilities did the best they could in an unknown situation that medically affected the most vulnerable the worse. They should be thanked for standing in the gap with many people's loved ones.
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Reply to Isthisrealyreal
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Thought I’d go ahead and post my thoughts on this.

I have been very happy with the care my mother has received in her new facility. She had been in an Assisted Living facility from 4/2019 until 2/28/2020, and I wouldn’t have wanted her to remain there through this. Fortunately (?) she fell on 2/28 and broke her femur. This meant she spent almost 10 days in the hospital after surgery, then a few days in a SNF until her current placement was able to accept her. The place she is now is primarily a memory care facility, but they have the medical staffing available to deal with both her rehab and her brittle diabetes.

She moved in after they had locked down, which made it hard for all of us. We had to basically send her off with whatever they told us she would need, and have had no opportunity to decorate or make things more “homey” for her.

Texas was one of the slower states to issue any guidelines for quarantine. However, I have been very satisfied with the response of her facility. They locked down early, were checking staff temps, requiring masks and isolating units before the end of March. Staff did not float between units or work at other facilities at all.

In spite of this, they found 2 patients with Covid-19 when they were tested in mid-April. The two patients had slightly elevated temperatures and slight wheezing, and so were tested. Immediately, they were moved to a new emergency section of the building and will be housed there until they test negative. Absolutely no staff members were symptomatic. I don’t know if they were able to test the whole staff...but that’s a fiasco that they definitely can’t control.

Throughout all of this, the facility has held Zoom meetings with families at least once a week and sent countless updating emails to all. Staff assists residents to make FaceTime calls as often as they can, usually 2-3 times a week. They have frequently sent me photos of Mom with messages from her and we have been encouraged to write and send photos. She became a great-grandmother for the first time 2 weeks ago and her nurse volunteered to print a photo my sister texted to her.

Unfortunately, though, I have heard of nightmare stories from different facilities. I’ve read of places where no rules about moonlighting were enforced, so staff could work at different facilities, carrying infection between them. I’ve heard of places where basic sanitation rules are not followed, let alone the stricter rules needed now. Common food preparation areas and personnel have been allowed. Families have been kept in the dark about any infection present or about whether any testing has been done at all.

Because conditions in facilities vary so much, I really think that lawsuits need to be evaluated on a case-by-case basis.
If the facility can show that they were following every precaution, there should be no grounds for a wrongful death action. However, if CDC guidelines were ignored or not followed to the letter, I think the facility bears liability. These places document everything (or they should be!) and if they can’t prove they were in compliance, criminal, or civil, suits should be filed.

I agree with other commentators that this is a vulnerable population, the staff is overworked and underpaid, facilities aren’t set up to handle epidemics like this, etc. However, over 70% of these facilities are owned by for-profit corporations. Their ultimate goal is not to provide care...it is to make money for their shareholders!

I think a blanket protection of care facilities would be a big mistake. I think the merits of each case need to be decided individually.
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Reply to KathyT124
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TNtechie May 4, 2020
What about facilities in NY state that were required to accept confirmed covid-19 cases and/or more cases than the facility could isolate? Or the facilities where little to no testing was available? Or the facilities where the staff were "moonlighting" to provide staff for the facility?

I know there are a limited number of rooms at one of our local MCs that can be used for a true isolation (separate HVAC for hallways and common bath, closets, etc.). The infectious disease plan (formed before CV) is to fill the isolation area on a first come first served basis and then evaluate whether the entire facility has been compromised or if additional cases can be relocated elsewhere or to the hospital. During flu season a couple of years back, several ill residents were isolated and cared for in their normal rooms but the one resident undergoing cancer treatments was moved into the isolation area to better protect her.

I'm sorry for the deaths and I do not believe facilities should have a complete pass, but I agree that unless gross negligence is found, there should be no basis for a law suit. Facilities are just too venerable. For example, isolating residents in their rooms and not allowing social contact with other residents or reducing baths in the common bathing area could be considered not providing needed care, but it was necessary to contain a spread if the virus infected a resident. Just like no one wanted to limited family visitors, but it was necessary to protect a super venerable population.

In my area, the two largest facilities have 1-2 staff members who have tested positive for CV, but _none_ of the residents are positive. To my mind, that speaks to the level of care and consideration the staff used to protect the residents. I think the staff in most facilities did the absolutely best they could with the resources they had.
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I agree completely that care homes need protection. I also think those protections should be extended to hospitals and funeral homes. NYC also needs to be protected for needing to dig graves in a park until proper burials can be arranged. I understand that everyone is hurting. People whose loved ones have died are hurting. People who can't see their loved ones are hurting. Everyone is suffering. Lawsuits will add more anguish, and no amount of money can undo the hurt and suffering. The only thing that money will do is make the lawyers smile all the way to the bank.

My FIL's indy living has done everything to protect the residents. And yet one resident tested positive. One resident died last week in hospital. I cannot imagine suing them if FIL were to get it and die when they have gone above and beyond.
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Reply to NYDaughterInLaw
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I think that the vast majority of care homes were/are doing their best with too little resources but there are probably a few that dropped the ball due to parsimony and a refusal to take the threat seriously. I would hate to see anyone who can be proven to be grossly negligent walk away scot-free if criminal charges are justified.
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