COVID-19 Claims against Long-Term Care Facilities

Adrienne C. Rogove

Since the outbreak of the coronavirus a little more than 100 days ago, there have been approximately 12,800 known deaths attributed to COVID-19. In New Jersey, nearly 50 percent of those deaths were residents of nursing homes and long-term care facilities. Prominent in the news has been the excessive rates of infection and deaths in two of New Jersey’s state-run veterans’ nursing homes. As of mid-June, at least 28 notices of tort claim have been filed with respect to the veteran facilities in Paramus and Menlo Park, claiming gross negligence and incompetence in the veteran homes’ response to the COVID-19 pandemic.

According to data from the state, at the Menlo Park facility, 62 residents and one staff member died from the virus. At the Paramus veterans’ facility, 80 residents and one employee died from the virus.

Lawyers for the claimants estimate damages for each case at five million dollars per claim, or $140 million for all claims filed thus far. It is likely that additional notices of tort claim will be filed given the high number of deaths at these two facilities, which have been attributed to a failure to follow infection control protocols and/or institute safety measures deemed critical to controlling the spread of the virus.

The allegations of misconduct include:

  • Administration directing staff not to wear masks or gloves, to avoid frightening residents;
  • Waiting more than a month after the first patient was diagnosed with COVID-19 to isolate infected residents;
  • Failing to prohibit residents from congregating in common areas;
  • Allowing infected staff to continue working;
  • Preventing staff from having access to personal protection equipment (“PPE”);
  • Failure to implement infectious disease outbreak plans;
  • Failure to segregate residents with COVID-19 symptoms from the rest of the facility’s population; and
  • Failure to implement testing of residents.

Because the veterans’ facilities are government-run and owned, a precondition to instituting a lawsuit is the filing of “tort claim” notices. For non-government-owned facilities, there is no such requirement.

It is likely that long-term care facilities will mount defenses based on various immunities afforded by federal as well as New Jersey statutes, including the Tort Claims Act, and charitable immunities that may apply to nonprofit facilities. In addition, we will likely see other defenses based on vague and conflicting directives issued by the state as to proper protocols and the use of PPE and the lack of communication and leadership from the federal, state, and local governments. For example, initial reports from the Centers for Disease Control and Prevention and Department of Health recommended only limited measures such as washing hands, but there were no lockdown orders in place until the virus had already started its deadly spread. Facilities were unable to obtain necessary PPE; government agencies would confirm that deliveries of PPE would be made, and then when the PPE was not delivered, agencies would claim not to know anything about these PPE orders. The government was slow to implement effective safety protocols—in part because of the lack of information about the virus, which persists to this day. As a result, facilities were left to fend for themselves—often without the resources or finances to obtain the necessary PPE. At the height of the outbreak, there was little to no guidance on the nature and extent of contagion or consequences of exposure. It is noteworthy that the federal government authorized billions of dollars in funds to be used for COVID-19 relief efforts in New Jersey. This could be construed as a recognition that there is a significant need by long-term care facilities for financial and other assistance to provide the proper care to residents given the chaotic and devastating effects of the coronavirus.

There is no doubt that the long-term care industry will be the target of litigation given the disproportionate number of infected residents and deaths from COVID-19. It remains to be seen how the courts will deal with these difficult and disturbing issues.

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