Author: Erin W. Pelham, Esq.
Earlier this year, the New York Times published an article1 detailing a $53 million settlement agreed to between an East Coast state and the families of the residents who lived in two state-run senior living facilities during the initial COVID-19 outbreak in spring 2020. At the time, the settlement was the first of its kind nationwide for COVID-19 litigation.
What made the settlement so high, besides a large number of claimants? The issue of gross negligence. In this case, prior to April 2020, the staff was allegedly told not to wear masks to avoid scaring residents and was banned from taking masks out of facility supplies. Plaintiffs alleged COVID-positive residents were congregating with healthy residents without protective equipment.
While the settlement may have been the first of its kind, similar lawsuits against private and public nursing homes are pending nationwide. Plaintiff's lawyers are now using the size and scope of the settlement as an outline for structuring future cases and multi-party settlements.
State and federal COVID-19 immunity
Across the country, most states have enacted an immunity statute to protect healthcare providers that continued operations throughout the pandemic. In the weeks and months to come, this legislation will be tested to see just how much protection it provides to those caring for the sick and vulnerable during arguably one of the most challenging and unforeseen times in recent American history.
Cases are currently pending at the state court level on the issue of immunity under state-enacted COVID-19 legislation and executive orders entered by state governors. As these decisions roll out, we could see a wave of new COVID-19 litigation, or a slowing of litigation, depending on the outcome.
Given the uncertainty of how COVID-19 immunity will play out in the legal system, many defendants are opting to settle cases rather than roll the dice at prolonged litigation where immunity could be challenged. Alternatively, many plaintiff's lawyers are structuring lawsuits to plead everything but COVID-19, in hopes to circumvent immunity defenses.
Defense counsel has used the PREP Act2 as an initial defense in COVID-19 litigation. Typically, a case is filed in state court and subsequently removed to federal court on the basis of the PREP Act. Though unfavorable to the defense of these cases, federal courts most often have remanded motions to dismiss under the PREP Act back to the state court. Early challenges to litigation through the PREP Act haven't been favorable for the defense bar. Most circuit courts have dismissed the appeals and remanded the cases back to state courts for lack of subject matter jurisdiction.
One thing is clear: this litigation process will be slow and drawn out in the court system. Those challenging immunity orders and seeking reimbursement for wrongful death or personal injury due to COVID-19 will face years of back-and-forth litigation before ever seeing a resolution.
Nursing home COVID-19 by the numbers
According to the Centers for Medicare & Medicaid Services (CMS) Nursing Home COVID-19 Data website — which includes data reported to the Centers for Disease Control's (CDC's) National Healthcare Safety Network Long Term Care Facility COVID-19 Module — there are 1,267,458 reported cases of COVID-19 from senior living residents in the U.S., with 158,468 resident deaths from COVID-19.
While 87.1% of residents have completed primary vaccination per facility, only 48.9% of residents are up to date with the current vaccine protocol per facility.3
COVID-19 litigation across the U.S.
While our focus is the senior living industry, litigation related to the COVID-19 pandemic has hit virtually all industries. In the U.S., 17,126 complaints have been filed related to COVID-19 as of September 30, 2022. California ranks the highest, with 3,094 filings, followed by New York, Florida and New Jersey. While filings across the country peaked in April 2020 and March 2021, they've subsequently tapered off into the third quarter of 2022.4
Of the more than 17,000 filings, Health and Medical filings rank ninth among the type of filings, with 541 total cases. Of those Health and Medical filings, 362 are wrongful death cases, 55 are malpractice cases, 12 are related to the right to visit a patient in a nursing home, and the remainder is categorized as "other."4
Defense best practices
Most COVID-19 claims fall into one of three categories: resident contracted COVID-19, non-COVID-19 resident had care that was negatively impacted by COVID-19, or wrongful death/personal injury claims. Defense lawyers work to defend these cases on the basis of state or federal immunity orders, showing compliance with regulatory requirements, highlighting compliance with the applicable standard of care and breaking the causal connection between the alleged breach and any damages suffered. Knowing what we do now about transmission, it's difficult to pinpoint the exact time and place of virus contraction, especially when residents are moved between hospital and facility.
We anticipate continuing to see the battle over immunity play out in the coming months. On the federal level, looking at the applicability of the PREP Act, and at the state level, the invocation of executive orders and COVID-19 immunity legislation. Immunity wouldn't apply should a plaintiff prove gross negligence, willful, wanton or reckless conduct. Absent a showing of such egregious conduct, most state immunity orders provide for protection from liability for a business, health care provider or other covered entity for damages arising from an act or omission related to the transmission of COVID-19 during the ongoing state of emergency.
Now more than two years into the COVID-19 pandemic, we find ourselves surrounded by much uncertainty as the legal process continues to unfold. Working with strong defensive partners can help senior living facilities ensure they're prepared to defend potential litigation. Staying current on CDC guidance, keeping families informed and maintaining proper facility documentation can all assist in the defensive process. The same healthcare providers who we lauded with praise — rightfully so — as our nation's heroes now wait with anticipation to see if their once supporters become their biggest critics in the courtroom.