A New Jersey nursing home that made headlines in April after an anonymous tip led investigators to discover 17 bodies packed into a tiny morgue is now facing a class action lawsuit. The lawsuit, filed in the Sussex County division of the Superior Court of New Jersey, alleges that, among other claims, Andover Subacute and Rehabilitation Center and several related entities acted negligently in its failure to protect residents from COVID-19 and violated state and federal nursing home laws.
An Overwhelmed Nursing Home
The case focuses on the Andover Subacute and Rehabilitation Center I and II (Andover I and II), which was hard-hit by the first wave of the coronavirus pandemic. As of the April 2020 investigation, the nursing home had experienced 68 total deaths from COVID-19, including the deaths of two patients. By September 2020, that number had risen to 94 deaths.
Before the investigation occurred, an Andover administrator reportedly called Representative Josh Gottheimer (D-NJ) to request more body bags. During the call, the administrator described the staff as “overwhelmed,” noting that she and many staff members were ill.
Taking Legal Action
The class action lawsuit, filed September 8, 2020, claims that Andover I and II violated state and federal nursing home laws, as well as New Jersey’s consumer fraud act. The complaint also alleges that the nursing home failed to take the proper precautions to protect residents from infection by COVID-19. According to the complaint, the nursing home was cited by the Centers for Medicare & Medicaid Services (CMS) before the pandemic occurred. The citations focused on the nursing home’s failures to meet safety and sanitation requirements intended to protect residents from communicable diseases. Although Andover I and II were told to change their approach, the lawsuit claims, the facilities resisted, describing their services as “high quality and regulatory compliant.”
The lawsuit was filed by a family member whose uncle died from COVID-19 on April 1, 2020, while living at Andover II. The complaint alleges that “were it not for the representations made by Defendants that [Plaintiff] and the Decedent relied upon, they would not have chosen [Andover].” The lawsuit names Andover I and II, as well as the nursing homes’ two owners and a number of as-yet-unidentified staff members as defendants. The plaintiff further claims that as COVID-19 swept through the facility, he found himself unable to get straight answers from the Andover II staff. As the plaintiff shared with CNN, Andover II did not confirm they had his uncle’s body for 21 days.
In a statement, Andover I and II investor Chaim Scheinbaum stated that the facilities “took every possible step” to handle the COVID-19 outbreak. The statement also noted that Andover I and II had reached out to government agencies for assistance and that in June 2020, CMS found Andover II “was in substantial compliance with all applicable standards of care.” In May 2020, however, CMS fined Andover II $220,235 for failure to be “in substantial compliance with federal requirements” between April 6 and April 20. The nursing home was given ten days to submit a plan for correction.
The Future of COVID-19 Class Action Lawsuits
The early days of the COVID-19 pandemic were marked by fear, uncertainty, and a vast range of unknowns. As we learn more both about the virus and about the situations in which it spread, however, a clearer picture has begun to emerge. To date, at least 5,131 lawsuits related to COVID-19 have been filed, according to a lawsuit tracker maintained by law firm Hunton Andrews Kurth LLP. So far, 107 of the tracked cases involve health or medical settings, including seven identified cases involving medical malpractice.
As details about the virus and its handling continue to develop, the number of lawsuits related to the mishandling of the pandemic may increase as well. As of September 2020, several states had passed legislation offering businesses at least some immunity from COVID-19 claims. Many states also limit liability for healthcare providers via executive order or emergency declaration. Most, however, preserve liability for willful or reckless conduct, as well as for gross negligence.
Since cases alleging willful or reckless conduct or gross negligence typically require a stronger showing of evidence than mere negligence, the participation of expert witnesses in these cases may play an even more crucial role. Experts in cases like the Andover I and II lawsuit may be asked to opine on the effectiveness of equipment and procedures meant to protect patients in close quarters from communicable diseases, for example. They may be asked to explain how COVID-19 spreads, or they may be asked to discuss how existing standards for the prevention of communicable diseases might or might not have slowed the spread of the disease. As these cases unfold, so will the need for qualified expert witnesses to clarify key issues.