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  • Jenny Rozelle, Host of Legal Tea

Current Trends - COVID-19 & Nursing Home Liability - Episode 13


Hey there, Legal Tea Listeners –This is your host, Jenny Rozelle. Welcome back – for another episode of Legal Tea! Today’s topic is a current trend … something going on in current time, that is pertinent to my world. For clarification this is being released and recorded in the Fall of 2021 – 2020 was a year that many will never forget, but wish to forget.


The COVID-19 pandemic was tragic, unprecedented, and at times … it felt like we were never going to get out. To be honest, we’re sitting here in September 2021, and now we’re facing the Delta Variant of COVID-19 – which is sweeping the nation and world. So, I guess I used the word “was” as in past tense – but we are very much still in the thick of things. It, sort of, still feels like we’re never going to escape.


Today’s “current trends” topic is kind of a more informational one – well, I hope all my episodes are informational! Anyway, let’s dive in…


According to The Covid Tracking Project, they have pulled state and national data – and around 8% of individuals who reside in long-term care facilities have passed away of COVID-19. That’s a US-specific number; not worldwide or anything. That statistic was pulled around March 2021 – so being a few months down the road from that, I’m unsure how significantly that has changed. I’m extremely hopeful that due to so many long-term care residents being vaccinated, that the number has not gone up.


Further, according to The Covid Tracking Project, the data shows that the 8% equates to nearly 1 in 12 residents. And even more specifically, when they pulled data just for nursing homes (because long-term care facilities often include independent living and assisting living), that for nursing homes – it was nearly 1 in 10 residents who passed away.

Those numbers are so sad – the word “sad” does not even fully describe the gravity of things. It’s heart-breaking. I have SO many clients that reside in long-term care facilities, so it hits close to home.


Something I’ve found myself thinking about the last year and a half (since the beginning of the COVID-19 pandemic), is that the word “unprecedented” is used so often – but simultaneously, it does describe things well too.


Like many or all states in the US, Indiana passed several emergency orders – many were about public health (i.e. shutting down the state, mask mandates, etc.); though there were some orders too that were indirectly related – for example, our State allowed us to conduct Signing Meetings of estate planning documents virtually like by Zoom, Microsoft Teams, Facetime. Before the emergency order regarding this, that was a pretty big no-no … instead, for signings, we needed to be in the same room with the person signing the documents. This was to try and eliminate undue influence, duress, etc. We can’t have any of that funny business going on…


On a serious note, many, many people lost many, many loved ones in long-term care facilities – and whether it was a coping mechanism or not, many of those people that lost loved ones wanted (or perhaps needed) someone to blame, someone to point the finger at … and whether or not the long-term care facilities were actually to blame, many did blame the facilities and accused them of neglect. That they did x, y, and z, or didn’t do x, y, and z – and then their loved one caught COVID-19 and passed away.


So when I say the word “unprecedented” … it really was, even legally-speaking. The laws were adapting in the middle of the pandemic. Not before. Literally orders and laws were being passed to pivot with the times. Here in Indiana, our Governor, Eric Holcomb, signed House Bill 1002, which effectively makes it very difficult to bring any nursing home case to a successful conclusion – specifically this law affects every nursing home neglect case occurring after February 29, 2020 and before April 1, 2022.


According to Tony Cook, an investigative reporter at a local newspaper in Indiana, IndyStar, who wrote an article about this topic, House Bill 1002 protects nursing homes from claims “arising from COVID-19” which includes the “reallocation of staff, delaying or modifying nonemergency medical services, and reasonable nonperformance of medical services due to COVID-19.”


I actually only learned about House Bill 1002 because my firm does not handle cases involving personal injury, medical malpractice, nursing home abuse, etc. So when anyone calls us regarding any of those services, whether they’re a client of ours or not, we refer those cases out to attorneys that solely practice in those areas. We had a child of a client that passed away, that we had referred to an attorney that handles those types of matters – and he informed us of this Bill. He stated he would be declining the case because the Bill makes it virtually impossible to succeed at a case against a nursing home.


As Tony shares in his IndyStar article, on one side of the aisle we’ve got the nursing home residents – they’re fearful that this opens up a can of worms. That now, the nursing homes can effectively provide subpar care and be protected against liability. On the other side are the nursing homes themselves, and they’re thankful for this protection because it will keep them “financially viable by shielding them from a potential flood of coronavirus-related lawsuits.”


You know, as an attorney, I can often see and perhaps make an argument for both sides – perhaps it is what law school engrained in me! Though, this situation is no different. Personally, where I struggle is where did the line get drawn – when should the nursing homes be held liable – and when shouldn’t they?


Part of me can see my clients – the ones that reside in these facilities and, of course, I would never in a million years want to allow subpar treatment (and give the nursing home an easy way “out”). Conversely, I have a lot of friends that work in clinical settings, including nursing homes, and fellow professionals that are long-term care facility staff … that probably do need some protection through these times. Where in the world does the line get drawn?


Tony Cook, in his IndyStar article, shared a story about a woman who got such severe bedsores, they had to amputate her leg. Upon receiving a citation from the health department, the nursing home used COVID-19 as the justification … as their defense. The woman’s son, Duane Zenn, shared: “…I can’t believe any sane human being would allow someone to have immunity when they’re doing these kinds of things to human beings.”

Outside of Indiana, other states are facing similar dilemmas.


In fact, in a February 2021 National Conference of State Legislatures brief, there are nearly 30 states that have introduced and enacted similar immunity laws for long-term care facilities. Massachusetts is one of those states.


WBUR, Boston’s NPR news station, released a two-part story about the immunity laws. In the first part of the story, they introduce Suzanna Smith, whose mother, Masae Hodges, went in for back surgery. After surgery, Masae went to a rehab facility, caught COVID, and passed away. Suzanna shared that the rehab facility did not disclose to them there had been COVID cases at their location. Once her mother arrived, the communication was less than stellar – ultimately, she only discovered her mother had COVID-19 after someone from the health department called. Suzanna claimed she did not even know they were testing her mother. Eventually, Suzanna and her father said goodbye to Masae via Facetime – and Masae passed away on May 5, 2020.


In the second part of the WBUR story, they introduce an attorney named David Hoey, who according to the article, is described as “the guy to call if you have a problem with a nursing home in Massachusetts.” As you can imagine, his phone has been ringing off the hook. He actually estimated that he has heard from probably about 500 people. The issue?

Well, he has had to explain to many (if not all) of those people that there is very little to be done because of the “emergency state and federal laws that protect health care providers from most lawsuits during the height of the pandemic.”


As you can see, this is convoluted, this is sticky, this is sad, this is … a lot of things. And I’m not sure if there’s even a happy medium. Like, earlier when I was talking about the line – as in where does the line get drawn? I don’t know if there’s a beautifully perfect answer. I’d say confidently there’s not actually – just like since the pandemic started, this is tough. Really tough.


While I, nor my office, does any kind of litigation like this, I did want to bring this topic up because it’s very relevant to my world – specifically doing elder law. I have many clients that reside in long-term care communities, so if you are one of them or their loved one, be your or their best, most ruthless advocate.


If you’re acting on behalf of someone else, make sure they have a Health Care Proxy and Advance Directives in place – to give you legal authority to make decisions for them and to give you guidance on those decisions. While you’re at it, check to make sure they have a Power of Attorney, too, to ensure someone can step in for legal and financial matters, if that becomes relevant.


It can become too late to #DoYourEstatePlan – don’t let it happen to you or your loved ones.

Next week’s topic is on estate planning of the rich and the famous – then, we’re going to talk about one of the greatest sports stars – Kobe Bryant. We’ll talk about him next Tuesday, Legal Tea Listeners! Talk to you then and stay well!


Sources:

https://www.aarp.org/ppi/issues/caregiving/info-2020/nursing-home-covid-dashboard.html

https://www.indystar.com/story/news/investigations/2021/05/01/covid-19-indiana-health-care-nursing-home-governor-holcomb/7401838002/

https://legiscan.com/IN/text/HB1002/2021

https://www.wbur.org/news/2021/08/19/nursing-homes-immunity-massachusetts-law-coronavirus-deaths

https://www.wbur.org/news/2021/08/20/legal-challenge-coronavirus-massachusetts-long-term-care-facilities

https://www.ncsl.org/Portals/1/Documents/fiscal/NCSLFebruaryFiscalBrief_COVID-19_Liability_Legislation.pdf


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