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Today's Tips for Tomorrow's Litigation for Skilled Nursing Homes
April 28, 2020
Nursing home and other long-term care facilities are bearing the brunt of the COVID-19 pandemic because their residents are at the highest risk for contracting the disease. It has been recently reported that 20 percent of all deaths in the United States from the coronavirus are associated with infections developed in nursing homes. Due to the current inconsistencies in reporting procedures, the actual numbers may be higher. This means even if your facility implements best practices in preventing COVID-19 infections, there is still a high likelihood that a resident and/or staff member will develop a COVID-19 infection.      
With the number of nursing home resident deaths unfortunately rising on a daily basis, the filing of wrongful death lawsuits already have begun. You need to prepare now in the unfortunate event your facility experiences a COVID-19 infection, or even worse, a death. Below are our recommendations for preparing for possible future litigation:
  • A good offense is the best defense. Be sure your facility is aware of, and strictly implements, the latest recommendations and guidelines published by CMS and the CDC.
  • Don't be afraid to go above and beyond in your rules to prevent spread. Consult with your employment counsel to discuss how to prevent any secondary employment, force leave of absences, and other measures to mitigate spread.
  • Your facility should optimize the use of critical PPE pursuant to CDC guidelines.
  • Check your admissions paperwork, and update those arbitration agreements! If your facility's admission paperwork includes an arbitration agreement, that agreement needs to be reviewed by counsel to see if it covers COVID-19 related illnesses and deaths. If your admission paperwork does not include an arbitration agreement, now would be a good time to consult with counsel about adding one to your facility's admission packet.
  • Preserve your files and communications that demonstrate the preparedness and preventative measures taken. And consult with your counsel about any internal communications that possibly do not need to be saved.
  • Federal, state, and local governments are demanding stricter and more in-depth reporting regarding COVID-19 infections and deaths in nursing home and long-term care facilities. You need to remember that regardless of new reporting requirements, HIPAA imposes a strict duty on your facility to protect patients' personal medical information.
  • Clear and constant communications and transparency with your residents, their representatives, and your staff regarding the status of COVID-19 in your facility will go a long way in preventing future litigation. With the assistance of counsel, you should design and implement a communications protocol for your facility now.
  • Before your facility experiences an outbreak of COVID-19 you should develop a "COVID-19 Action Protocol" with step-by-step action items so residents and staff know what actions to take to prevent and mitigate the outbreak.
In the near future, we will be providing an in-depth analysis of each of these recommendations and additional issues involving COVID-19 and the nursing home and long-term care industry, so please keep a close eye on your inbox for future emails.
As always, if you would like to have an in-depth discussion about any of these topics, or any other legal issue impacting your facility, on a more expedited basis, please feel free to reach out to any member of Spilman's COVID-19 nursing home, assisted living, and long-term care industry Task Force.
Health Care Law Matthew W. Georgitis
336.727.7642 Alexander L. Turner, CIPP/US