What Can We Expect with COVID19 and Our Loved Ones in Nursing Homes?

Nursing home injuries are far too common and almost anticipated nowadays.  It is no wonder that the nursing home and assisted living industry has been at the forefront of the Coronavirus onslaught.  From the beginning we have known that the elderly are among those at highest risk for succumbing to the deadly effects of the Coronavirus.  The risk level is compounded by the fact that many in these facilities have health conditions which compromise their immune systems.  Now we have a perfect storm, creating a veritable breeding ground for this deadly pandemic.

What’s Happening in Maryland Nursing Homes?

While nursing home injuries from falls to bedsores, to untreated sepsis and dehydration continue, a virulent enemy now lays siege to these facilities and their vulnerable residents. Health officials have reported seven cases of COVID-19 at Genesis Loch Raven Center in Parkville (a Baltimore County, Maryland nursing home).  They have reported t least five cases at Levindale Hebrew Geriatric Center and Hospital (a nursing home and hospital in Baltimore City, Maryland).

They have reported four cases at Carroll Lutheran Village (A nursing home in Westminster, Maryland) and two cases at Heritage Center (a nursing  home in Dundalk, Maryland.) The outbreaks are highest in those places where large numbers of elderly people live and receive medical treatment.  Nearly 80 people contracted the virus at Peasant View Nursing Home in Mount Airy, MD.  Five have subsequently died.  This past Wednesday, 13 people died from the Coronavirus in Maryland, all 60 or older. We have seen a 20% day-to-day increase in total number of cases in Maryland.  If things don’t change quickly, that number will continue to persist and rise.

Are Nursing Homes in Other States Doing Better?

Despite these daunting figures and known risks, the numbers of cases and related deaths rise.  As of March 18, 2020, at the Life Care Center in Kirkland, WA, 81 of their 120 residents tested positive for the Coronavirus.  34 residents have died.  Reports from the Centers for Disease Control and Prevention (CDC) state “that limited access to testing, as well as staff working at multiple facilities while sick, and a lack of protective equipment, contributed to the disease’s spread at Life Care.” At least 10 other elder care facilities in the Seattle area are experiencing COVID-19 outbreaks. Of course, this type of Coronavirus spread isn’t unique to Washington State. The virus has cropped up in elder care facilities across the country.  More than 73 care facilities in 22 states have reported COVID-19 infections.

Why is COVID19 so Dangerous for Nursing Home Residents?

Residents of long-term care facilities, nursing homes, and assisted living facilities, are at the highest risk of contracting this illness and suffering the worst possible outcome.  These patients check many of the high-risk boxes which include advanced age, heart problems, diabetes, pulmonary problems, and other infectious complications such as UTIS and/or bedsores.  All of these conditions, alone (or in combination with one another) compromise the resident’s ability to fight off this unrelenting virus.  Some residents arrive with these conditions, while others sustain these nursing home injuries during their residency.

When these these factors are coupled with close living quarters, tight common areas such as cafeterias and activity centers, and healthcare providers that work in different facilities; a deadly set of conditions arise and converge.  The president and CEO of the American Health Care Association (AHCA) recently commented, “the grim reality is that, for the elderly, COVID-19 is an almost perfect killing machine.”

We Fear Death Because if its’ Inevitability.  But Inevitable Does not Mean Unavoidable.

No.  This DOES NOT mean that patients who live in these facilities and contract COVID-19 and/or die from it, is an unavoidable fate.  This does not mean that nothing can be done, that death is inevitable, and that lives cannot be spared.  Eldercare facilities must be in regular communication with public health authorities such as their state department of health and listening carefully for updated CDC guidelines, while closely following all preexisting guidelines.

Unfortunately, protocols and guidelines issued for everyday infection control in these facilities (long before there was a pandemic) have often been ignored, and/or minimally adhered to at best.  Hence the long and storied history of nursing home injuries sustained by residents.  This mindset is no longer an option.  Now, more than ever, the everyday protocols must be strictly adhered to. Detailed protocols that are being issued to nursing facilities as part of pandemic plans are mandatory for all Centers for Medicare & Medicaid Services (CMS) participants.  Many of these plans should have already been in place, with COVID merely triggering the rapid implementation of these pre-existing plans.  The sad truth is, many did not have them at the ready and their implementation has been anything but swift.

So What Should Be Done?

American Healthcare Association and National Center for Assisted Living Protocols

A joint update from the American Healthcare Association (AHCA) and the National Center for Assisted Living on February 29, 2020 instructed health facilities to follow a number of  protocols:

• Monitor staff and visitors for hand washing or use of alcohol hand gels
• Review contact isolation procedures and ensure staff follows them consistently
• Restrict the use of common areas to prevent the spread to other residents and staff
• Remind staff, contractors, volunteers to stay home if they are sick
• Starting now, post notices for visitors who are sick to stop visiting and work with families on alternate ways to visit their family members, like Skype, phone calls and email
• Check with the local health department if they are recommending more restrictive criteria for visitations as COVID-19 spreads
• Stay in close contact with your local and state health department
• Make sure your infection preventionist signs up for health department and CDC announcements
• Monitor the CDC COVID-19 website for the latest information on Coronavirus prevention strategies, testing guidance, and recommendations for health care workers

CDC Protocols

Furthermore, the CDC has issued updated guidance recommending that nursing homes:

• Restrict all visitation except for certain compassionate care situations, such as end of life situations
• Restrict all volunteers and non-essential healthcare personnel, including non-essential healthcare personnel
• Cancel all group activities and communal dining
• Implement active screening of residents and HCP for fever and respiratory symptoms

Elder care facilities must do everything they possibly can to protect their patients and staff from this deadly disease. What happened in Washington is an alarm, blaring out to all other facilities throughout the country.  Heed their warning or follow in their footsteps.

Is Maryland Doing What it Needs to?

Maryland has started, but are we far enough ahead to ward off this sort of decline?  Only time will tell.  What we do know is that this industry can no longer play fast and loose with protocols, guidelines, and regulations.  All too often nursing home injuries occur as the result of the nursing home’s failures t follow its own protocols and guidelines.  And all too often, their residents are hurt or die from this lax approach.

Victims and their families are often left with no other avenue than pursuing a civil suit, in the hopes that the next patient doesn’t have to endure what their loved one did.  Now, more than ever, there remains no room for error.  These facilities must fall in line and do everything they can to save and protect the lives of their residents and their employees.  This virus does not discriminate.  The failure of one, whether it be a doctor, administrator or CNA, will ultimately be the unavoidable (and potentially fatal) failure of all.

Are the Lawsuits Coming?  Won’t they do more harm than good?

Now is the time when hyper-vigilance is not an overreaction, it’s the minimum response required by all.  Lawsuits may yet follow where these facilities fail to do what they must do in a timely fashion.  But remember, if one day you read about a lawsuit that has been filed, it was not because the situation was unavoidable.  It was not because someone was trying to make an easy buck off the life of someone who needlessly suffered.

But Lawsuits are Frivolous, right?

It is because experts in the field (doctors, nurses, administrators) have reviewed the facts and have said “This should not have happened.”  “This could have been avoided.”  If only these providers did what they were told to do, what they were mandated to do; if only they had been properly instructed on what to do and how to do it, (even with all these complexities) then these lives should not have been lost.  These lives could have, should have, been saved.

Lawsuits are filed when people are needlessly hurt or die because other people have chosen to take unnecessary chances, have made poor decisions, or did not follow the rules, protocols and/or mandates required of them.  This includes nursing home injuries.  As a nursing home attorney who represents our most vulnerable population in horrific injury and death claims, it is my deepest wish that these claims will not be needed and that these facilities step up and do that which they have failed to do, all too often, in the past.

It’s never too late to do what is right.  Protocols, guidelines, mandates, they are there to protect our community, our loved ones.  My wish is that every facility rises to the occasion and ensures that there is no need for services like ours.  Because no one is disposable.  No one deserves to lose their life because someone could not be bothered to follow the rules that are there to protect and save lives.

Lawyers Ruin Everything, Including Pandemics.

People joke about lawyers.  And many of those jokes are well earned.  But the reality is, too many systems frivolously hurt and needlessly take advantage of people during their most vulnerable moments.  These systems have no effective, or meaningful, mechanism in place to hold those accountable for those poor choices that have caused wrongdoing and objectively hurt others. And in that moment, where there is no other recourse or protection, our justice system remains.  It is a constant.

Even through a Pandemic, it pushes onward.  Even when it can be a detriment to those of us who work within it, it keeps moving onward.  Because the right to access our legal system by any and all, is paramount.  It is the last watchdog looking over the practices of people and businesses.  It either ensures they do everything they can and should to protect us all, or, it provides the opportunity for accountability.  Being a lawyer is certainly not always considered the noblest of professions, but it is most certainly a necessary one.

So What’s The Point of Any of This, Why Bother?  Isn’t it too late?

In today’s chaotic age, people are isolated in their homes, in their bedrooms.  Children are restricted to their homes and backyards, and the schools are closed.  We must wipe mail down and leave boxes in garages for 24 hours or more. We cannot hug our loved ones, and we must physically keep to ourselves to protect the herd.  Businesses are closing at a record rate and unemployment is skyrocketing.  Anxiety and Depression is on the rise, which is understandable.  Where everything we know has shifted and hangs in the balance, there remains one constant: our civil justice system.

Now, more than ever, it often feels like a last remnant of a society we used to know.  But, no matter how things change, t will most assuredly accompany us on-wards into a new day and age, that has yet to come.  It will continue to ensure that the rights of all are protected.  This protection and access to the courts extends to all, irrespective of social status, political capitol, socioeconomic means, race, religion, sexuality, gender, or age.  It will continue to ensure that there is no disparity that makes it acceptable for anyone, or anything, to needlessly and avoidably hurt another, without the ability to demand an examination of accountability.

And so, if my only legacy is that something I did, helped remind someone (somewhere) follow a rule because it was meant to protect someone…then maybe the choice I made so many years ago, that has cost me precious time with my loved ones, my family, and my children, will not have been made in vain.

Stay safe and be well.