By Kate Wallace, LPN, EMHL, JD
CareSafely recently hosted a webinar on the flood of COVID-19 related criminal and civil lawsuits that have been filed against nursing homes and their leaders. Law partner Amy Yarbro and CareSafely CEO Raj Shah shared their insight and perspectives with hundreds of skilled nursing and senior care professionals. Here are some key highlights:
- 55 civil and criminal lawsuits have already been filed in state and federal courts, and hundreds more are in the process of being filed.
- Class action suits have also been filed.
- The top 6 types of lawsuits are:
- Failure to test
- Lack of communication with families and staff
- Failure to follow CDC guidelines (especially social distancing and isolation)
- Concealing cases of COVID-19
- Criminal neglect
- Federal & State Immunity Provisions:
- Federal immunity provision known as the PREP Act.
- 26 states have implemented immunity provisions protecting long-term care facilities, and health care providers from civil negligence lawsuits arising from the COVID-19 pandemic. These include decisions resulting from resource or staffing shortages. These measures provide immunity for acts or omissions that happened after state public health emergencies were declared.
- The Immunity laws however have some very big exceptions around gross negligence where there is very little protection.
- Also, some of the states are peel back some of the protections that were earlier established, and some immunity protections are expiring.
- Prosecutors are not being kind when it comes to the False Claims Act and the Worthless Services Theory around Federal reimbursement for services with no known medical value. Under 42 CFR §483.80(g) adequate COVID-19 reporting must have taken place, and under the law an infection control plan must have been adequately in place.
- Even if a lawsuit is ultimately discharged, legal fees add up, defense takes time away from caregiving and managing operations, and negative media coverage places a “cloud” over the community and facility. These suits tend to have an impact on the census and overall business as well, and defending a suit can take anywhere from 1-5 years.
- Best Practices to minimize personal and organizational liability:
- Follow Federal, State, & local guidelines
- Show honesty, transparency, and empathy
- Ensure adequate staffing
- Have an auditable timeline of events—because it matters when you knew or “should have known”
- Have digitized records, because it’s the easiest way to maintain good, accurate documentation
Watch the full webinar and download the discussion slides on our resources page.