[Podcast] COVID-19: Diagnosing Liability | Ep.1 Nursing Homes

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Our new limited podcast series, COVID-19: Diagnosing Liability, is an open dialogue between industry experts and litigators discussing what negligence looks like in the age of COVID-19, assessing liability across industries, and uncovering insights into the kinds of lawsuits that may be viable.

Ep.1 Nursing Homes

The nursing home and assisted living industry has absorbed the tip of the deadly coronavirus’ spear. Although it has been argued that the comorbidities among advanced-age residents made a high death rate inevitable, many are not convinced nursing home staff have done all they can to protect these vulnerable populations. As nursing homes in many states scramble for immunity protections, we explore how eldercare facilities responded to testing and PPE shortages, the role communication played in the viral spread, and whether ageism may have been at play.

Hosted by: Wendy Ketner, M.D., SVP of Medical Affairs at Expert Institute

Special guests:

Disclaimer: The opinions expressed in this podcast are those of the experts and do not represent the views or opinions of Expert Institute or its members.

Audio Transcription

Dr. Ketner: Hi everyone, and welcome to the first episode of Expert Institute’s limited podcast series, COVID-19: Diagnosing Liability. I’m Dr. Wendy Ketner, and I’m the Senior Vice President of Medical Affairs at Expert Institute. On today’s episode, we’ll be discussing how nursing homes across the nation have been responding to the COVID-19 crisis since the first cases of the outbreak were reported. We’re also going to explore some of the gaps in the management and protocol that contributed to extremely high death rates in elder care facilities and discuss what gross negligence looks like in these establishments, what kinds of cases are being filed against nursing homes related to COVID-19, and where the liability lies for upcoming litigation.

I have three guests joining me today, all of whom are extremely passionate about what is happening in nursing homes across the country in response to COVID-19, and two of whom have really been boots on the ground, treating patients and keeping these facilities running throughout these last three months.

So first I’d like to introduce Dr. Marc Shepard. Dr. Shepard is the Medical Director of a nursing home in Maryland. He is board-certified in internal medicine, and has over 30 years of experience as a primary care internist. He’s also an attending primary care internist at a non-profit healthcare system in Washington D.C. specializing in the care of geriatric patients. Dr. Shepard received his medical degree from Northwestern University Medical School and has also worked as an associate professor of medicine at George Washington University. Thank you so much for being with us today, Dr. Shepard.

I also have with me Nurse Lorraine Doonan. Nurse Doonan is currently an assistant administrator at a home care agency and nurse supervisor at a rehabilitation and long term care facility in Connecticut. She is also the former executive director of an assisted living facility in Connecticut. She has more than 25 years of experience in hospice care, home health care, and acute care, and assisted living healthcare management. As well as extensive knowledge of federal and state regulations pertaining to hospice and home health care, and has developed and implemented policies pertaining to fall risk prevention. We’re delighted to get her opinions today.

Nrs. Doonan: Thank you.

Dr. Ketner: My last guest today is both an old colleague and a good friend, Mr. Alan Fuchsberg, Esq. Alan is Managing Partner of the Jacob Fuchsberg Law Firm in New York City and a nationally-recognized personal injury advocate. Alan’s experience spans the full spectrum of personal injury actions, medical malpractice, and wrongful death cases, including many nursing home negligence matters. Thank you for being here, Alan.

Mr. Fuchsberg: Thank you, particularly about being an old friend.

Dr. Ketner: Now before we dive into discussion with the experts, I’d like to share a few stats with all of you just to give some color and backdrop as to what is happening in nursing homes around the nation and how quickly things are unfolding in regard to COVID-19 in these scenarios.

By the Centers for Disease Control and Prevention’s latest estimate, the U.S. has about 15,600 nursing homes with some 1.3 million residents. One quarter of those residents, about 425,000 people, are over the age of 80. So far to date, we’ve had almost 82,000 deaths in the U.S. alone. Back on April 17th, The New York Times reported that one fifth of deaths from coronavirus were related to nursing homes. Two days later, on April 19th, the CDC started requiring them to report past and present cases across the nation. We know in Europe, 50% of COVID-19 deaths ended up being linked to nursing homes.

Dr. Shepard, I’ll start with you. Can you talk a little about the difficulty in accurately reporting the cases, knowing that nursing homes see deaths outside of the COVID sphere all the time?

Dr. Shepard: Well, initially we had a problem with access to testing. We had residents getting sick and some were suspicious, but we didn’t really have access to testing. And then, one of the staff tested positive for COVID. And then after that, we started testing more and we found more positives. And then after that we contacted The Department of Health, and they supplied us testing for all the residents, and we had all the residents tested.

Dr. Ketner: And how many of them came back positive?

Dr. Shepard:We had about four or five deaths, which weren’t tested, but probably were related. And we now have 12 positive out of about 30 residents.

Dr. Ketner: And Alan, from a litigator’s perspective, what kinds of nursing home cases are individuals bringing to your door and you know, what kinds of nursing home cases is your firm preparing to litigate?

Mr. Fuchsberg: We’re about to file a suit that is a subcategory of nursing homes, which is assisted living facilities, where people have the same comorbidities and risk factors as people in nursing homes. And there are many people in assisted living facilities and they are also regulated by Medicare and Medicaid and are entitled to those services. Yet, whatever happens in the nursing home is almost magnified because the amount of money that they get to take care of each one of these patients that qualify is less. And so it’s the same problem—that there isn’t enough staffing.

People are critical from the other end that a lot of these assisted living facilities, just like nursing homes, are privately owned and profit becomes paramount, and therefore the staffing isn’t as much as it should be. So for example, The New York Times just reported a couple of days ago that the average amount of hours in a nursing home that a patient may get could be three and a half hours. And it’s that lack of time and together with experience of the staff to address a pandemic like this with people who are more at risk, that has contributed to a crisis and caused the numbers to be much higher than they need to be.

And whether there will be good lawsuits for damages and compensation is one thing because a lot of governors, and the U.S. government, has passed immunity from liability laws. But we are coming in for injunctive relief to demand that these facilities up their game and provide the services that are missing in order to cover the needs as Dr. Shepard was describing.

Dr. Ketner: And Nurse Doonan, I want to get your thoughts on this. Looking at, you know, stats of death rates in nursing homes, how did this happen? Can you describe your experience working in a nursing home during these past couple months?

Nrs. Doonan: Sure. Before I go into that, I want to follow up on Alan’s comment and say that in assisted living, part of the problem as I see it, is that the residents there should not be nursing home level residents. And yet, because they are privately owned and run, they’re held onto sometimes longer than they should be, when they should be moved to a higher level of care. And now with the spread of COVID-19, especially in locked dementia units, it seems to be spreading like wildfire. The issue is being magnified tenfold.

As far as what I saw as the start, very early on I was at a meeting at a university hospital setting. The meeting is actually called The Dream Team Meeting. And it’s called that because it’s meant to be a meeting amongst healthcare entities across the continuum. Well, this meeting became a discussion about COVID-19. And one of the issues that came up was the concern on the skilled nursing facility marketing staff to obtain the negative questionnaire that was starting to be asked of patients upon entry to the emergency department or to admission to the hospital in regards to risk factor for COVID-19. And a whole discussion went back and forth as to whether sharing that questionnaire with assisted livings, skilled nursing facilities, or home care agencies violated HIPAA. And the decision in the meeting was made that no, it didn’t, because the person you’re referring to has a vested interest in that information.

So the recommendation was made and agreed upon to go ahead and share the questionnaires. Have them be part of the referral process. But, on the other hand, as Alan mentioned about the assisted living and nursing homes, they’re privately owned. So we took that information back. But the decision whether to base your admission decision on that negative questionnaire, or even require it, is a facility by facility, or corporate, decision. I can recall a patient—the testing was an issue, but the patient was accepted with risk doctors and then turned out to be positive. I don’t think it’s an isolated case. I think that happened quite a bit.

And I think, I’ll be honest with you, I think there was a sense of denial going on. You know, we’d never seen this before. We could not have anticipated the magnitude. But, we also had safeguards we could’ve put into place. And I think in some ways the safeguards didn’t get put into place quick enough. And I think business went on as usual.

I think the lack of PPE equipment contributed. Unless it’s really, really a severe infectious case, we don’t typically wear PPE equipment all the time. Especially, you know, we’ve transitioned from calling nursing home “patients” to nursing home “residents.” It’s their home setting. Same in assisted living. You try to get away from such medical appearances. So there, and we don’t have the PPE equipment, and then there was an initial shying away from using it.

As this became more of a threat, or known entity, I was involved in the training of the staff. The fear factor was huge amongst the staff. It’s like nothing I’ve ever seen before. It’s always been your patient first, and here I was seeing the reaction that was, “It’s the patient in my family as well.” So the lack of PPE equipment became a very big issue, as did the lack of testing. And I think that’s what led to the rapid spread. I mean, what I’ve seen is once one patient gets it, it spreads and then a patient gets that, your staff gets it, and it goes amongst the departments.

Mr. Fuchsberg: Just to add to Lorraine about people with dementia, that’s very true in this population. I’m also working with an assisted living facility that has many psychiatric patients. This is a population that unlike if you or I were told that we need to socially distance ourselves, we need to stay in our rooms, we can’t hang out and roam in the hallways and look for friends, et cetera, et cetera—they cannot cognize this situation, this circumstance, so as to help whatever staff is there carry out what needs to be carried out. So you could publish instructions, but those are not necessarily followed, and that adds to the problem

So what we’re trying to argue in our case that we’re putting together under the Americans with Disabilities Act is that you’ve got to up your game to provide enough staff supervision, testing separation, regimentation to protect people in these facilities with these health issues. And some places obviously do a much better job. And there are amazing people around, like Lorraine and many of the people she works for. But other places are understaffed and under instructed.

So it’s not just the PPE equipment that isn’t being provided, but, in many instances, not enough people or enough instruction. And from a lawyer’s point of view, people with a certain level of disability have come to these facilities with the understanding that they would be afforded these protections, and should be afforded these protections.

Nrs. Doonan: I think that’s a very good point, Alan, and I also think their families are under the impression they’re going to be afforded certain protections. And with the coronavirus, they can’t visit them. So they’re fully trusting that there’s protections in place. And I can tell you in Connecticut, we had an issue with under-reporting.

For example, one skilled nursing facility reported nine deaths when at the time they had 34. And now they’re up to 43. They’ve surpassed the nursing home, and I believe it’s Kirkland, Washington, has the largest number of deaths in the United States as of today. And it was a matter of under-reporting. And now it’s at the point where bodies are being exhumed and tested after death.

Dr. Ketner: I want to go back and talk about the PPE, the personal protective equipment, because I think this has been such a big topic. Dr. Shepard, I believe your hospital got a nice donation, but maybe you can touch on, you know, what nursing homes are doing, others might be doing, to combat shortages? And, and then on top of that, what are the best practices for protecting staff and patients, especially in these situations where some of these patients need to be fed or need to be transferred by, you know, the hospital and nursing care?

Dr. Shepard: So I work at a Catholic home and they were fortunate enough to have a donor donate PPE. But they’re going through an awful lot of gloves and I understand that the price of a box of gloves that’s being charged has been exponentially increased. And they’re running low on gowns, so it’s still, it’s still a problem.

The dozen patients who are COVID-19 positive, they’re on droplet precautions. So staff going into the room has to have an N95 mask and all the protection. And the N95 mask, I understand, is a problem for some.

One other comment about staff. Lorraine talked about how terrified the staff are, which is correct. So at the nursing homes, a lot of the staff are calling in. Either they’re sick or they just don’t want to be there. And the nursing home has the dilemma, not only of having to staff the home, but find outside people, and the outside people could be bringing the virus into the home. In which case, people like my friend Alan could be suing the home for people coming into the home bringing the virus. So I really think the nursing home is in a pretty rough position as far as staffing goes.

Dr. Ketner: Nurse Doonan, I want to ask you this and then Dr. Shepard have you comment as well/ But you mentioned, you know, obviously we hear the word “unprecedented” all the time. You both have had tons of experience in your long careers, but what sort of emergency planning protocols are there for quarantining sick patients, if at all? Or even operating with, you know, half the amount of staff? Is this anything that people had thought about before? And in speaking about volunteers, what are best practices for controlling them?

Nrs. Doonan: I can speak for here in Connecticut, we had worked very diligently with The Department of Public Health when SARS was a factor and developing a pandemic plan. And we had the tools available to us. And we have a very strong, in the nursing home setting, mutual aid program. It’s a separate entity but it works with The Department of Public Health. And that will provide you resources, beds, throughout other facilities.

We didn’t activate it, I don’t believe soon enough. I think we had it in place. I think there was a hesitation until it became a crisis. It became crisis management. Which in my experience, and I will say we never experienced this before, but crisis management never works. Our purpose of developing a pandemic plan was to not have to do crisis management, and we did it again. I do think we’re learning from it. I think we’re further along now in the process, and people are being much more stringent, facilities are.

For instance, the first restriction was visitors. But then we allowed staff to come in from other states and not be licensed in our