COVID-19 Liability In Long-Term Care: A Tidal Wave Or A Trickle Of Litigation In Virginia?

Almost every part of the world has been negatively impacted by COVID-19. But the U.S. has been hit hardest, and in terms of COVID deaths, no other community in the U.S. has suffered like the residents of long-term care (LTC) facilities.

Residents of LTC facilities, namely nursing homes and assisted living facilities, comprise only about 1 percent of the U.S. population, but account for an estimated 40 percent of COVID-19 deaths in the U.S.1 The CDC explains that, “[t]he communal nature of nursing homes and long-term care facilities, and the population served (generally older adults often with underlying medical conditions) put those living in nursing homes at increased risk of infection and severe illness from COVID-19.”

This deadly combination has contributed to massive outbreaks in many facilities across the country, particularly early in the pandemic, with some facilities even reaching a 100 percent infection rate among residents.

One Kansas nursing home, the Anbe Home, is facing federal penalties after all 63 of its residents became infected with coronavirus, killing at least ten.3 The Centers for Medicare & Medicaid Services (CMS) investigated and found the facility failed to separate healthy residents from infected ones. As a result, and as the federal agency that regulates U.S. nursing homes, CMS moved to impose thousands of dollars in fines on Anbe, and more damagingly, to terminate it from the Medicare program, which can mean an almost certain end for any nursing facility.

At least 94 residents died of COVID early in the pandemic at two sister New Jersey facilities.4 Many family members reported at or around that time they were unable to get in touch with facility personnel, and many hadn’t heard from their loved one in weeks. Police searched the facility and found five bodies in a small holding room. The next day, they found another twelve bodies in the same room.

The facility allegedly never contacted any of the 17 residents’ family members or reported any of their deaths to the authorities. The facility is now facing a proposed class action lawsuit alleging the owners misled consumers in violation of the New Jersey Consumer Fraud Act and failed to protect residents in violation of state and federal nursing home laws.

Massachusetts Attorney General Maura Healey brought the first criminal case in the country against two administrators of a Massachusetts veterans’ nursing home for their part in an outbreak that killed 76 of its residents. The extraordinary charges were brought after the state found that staffing shortages led the administrators to make the “tragic and deadly” decision to consolidate two dementia units, resulting in confirmed COVID-19-positive residents knowingly being placed near asymptomatic veterans in the facility.

No criminal charges have been brought in Virginia against any LTC facility owner or administrator, but significant outbreaks have occurred, and as of this writing, they continue to occur.

In May 2020, at least 51 residents died at the Canterbury Health & Rehabilitation Center, a skilled nursing facility in Henrico County.

And more recently, on Nov. 20, 2020, the Virginia Department of Health reported that Heritage Hall, a nursing home in Big Stone Gap, had 190 infected residents and staff, resulting in 21 deaths.

The inevitable litigation that follows such stories of mass infection and death are just starting to emerge. Some predict a flood, others a trickle.

Conservative politicians certainly believe there will be a flood, which is why they’ve insisted immunity from ordinary negligence suits be included in any additional pandemic relief legislation.

Senate Majority Leader Mitch McConnell predicts a “tidal wave” of COVID-related lawsuits will be brought against health care providers, intended only “so that trial lawyers can line their pockets.”8 Last July, to prevent these supposed nuisance suits, he and the other Senate Republicans proposed the Safe to Work Act, insisting its provisions be included in any future congressional COVID-19 pandemic response bill. The Act contained a safe harbor, retroactive to 2019 and effective for five years, that would have shielded owners of long-term care facilities from COVID-related liability if: 1) reasonable efforts were taken to comply with applicable government standards and guidance in effect at the time; 2) the facility did not engage in gross negligence or willful misconduct in responding to the COVID-19 pandemic; and 3) the Plaintiff ’s injury or death was caused by actual exposure to coronavirus.9 The Act failed, but many states, including Virginia, had already passed laws providing immunity for long-term care facilities anyway.

Virginia Governor Northam signed Executive Order No. 60 (“EO60”) on April 28, 2020. EO60 acknowledged that healthcare providers, including nursing homes, were under significant stress due to large numbers of patients presenting with COVID-19 symptoms and critical shortages of personal protective equipment (PPE) due to supply chain disruptions. Governor Northam also acknowledged staff shortages within facilities, including it among the difficulties “created by the effects of COVID-19” and presenting “less than optimal conditions to deliver the healthcare indicated by conventional standards of care.”

EO60’s stated purpose was, in relevant part, to “clarify” that COVID-constitutes a “disaster,”10 as that term is used in Virginia Code Section 8.01-225.02. Section 8.01-225.02 provides, in relevant part:

In the absence of gross negligence or willful misconduct, any health care provider who responds to a disaster shall not be liable for any injury or wrongful death of any person arising from the delivery or withholding of health care when (i) a state or local emergency has been or is subsequently declared in response to such disaster, and (ii) the emergency and subsequent conditions caused a lack of resources, attributable to the disaster, rendering the health care provider unable to provide the level or manner of care that otherwise would have been required in the absence of the emergency and which resulted in the injury or wrongful death at issue.

Governor Northam further clarified that “emergency and subsequent conditions … attributable to the disaster” include insufficient availability of PPE or other supplies, insufficient availability of trained staff, and using supplies or equipment in innovative ways.

It’s clear that EO60 immunity will apply in COVID-19 cases in which a LTC facility can reasonably excuse its deviation(s) from the relevant standard of care on shortages of PPE due to supply chain disruptions and/or unavoidable staffing shortages.

What’s not as clear about EO60 is whether it will provide LTC facilities immunity for non-COVID-related care they provided during the declared state of emergency. For example, will EO60 immunity be an available defense in bedsore cases, common pre-COVID, that involve care provided during the declared emergency?

A subsequently enacted Virginia statute may be instructive on this question. On October 13, 2020, Virginia Code Section 8.01-225.0311 was enacted and provides, in relevant part:

In the absence of gross negligence or willful misconduct, any … assisted living facility … that delivers care to or withholds care from a … resident … who is diagnosed as being or is believed to be infected with the COVID-19 virus shall not be liable for any injury or wrongful death of such … resident … arising from the delivery or withholding of care when the emergency and subsequent conditions caused by the emergency result in a lack of resources, attributable to the disaster, that render such … assisted living facility … unable to provide the level or manner of care that otherwise would have been required in the absence of the emergency and that resulted in the injury or wrongful death at issue.

The new law provides immunity to assisted living facilities and other providers who might have been excluded from EO60 immunity since these providers are not expressly defined as “health care providers” in the Virginia Code, and Section 8.01-225.02 only provides immunity to “health care providers” during declared disasters.

Regarding assisted living cases, there appears to be no question that the new statute’s immunity will only apply where the plaintiff alleges actual coronavirus exposure. There remains some question, however, whether EO60 immunity will apply in non-COVID, ordinary negligence claims against nursing homes regarding care that took place in the COVIDera, although the new law could be construed as signaling the legislature’s intent that the previous statute and EO60 immunity apply only in nursing home cases that allege actual coronavirus exposure as well.

In any case, wise plaintiffs’ counsel will certainly include all possible allegations of gross negligence and/or willful and wanton conduct to overcome possible EO60 immunity defenses, and wise defense counsel should be prepared to defend these claims.

It is hard to imagine any plaintiffs will allege that a LTC facility’s owners or personnel intentionally infected them with the virus. But as the Supreme Court of Virginia recently decided,12 “…ill will is not a necessary element of willful and wanton conduct.” The Court explained:

In order that one may be held guilty of willful or wanton conduct, it must be shown that he was conscious of his conduct, and conscious, from his knowledge of existing conditions, that injury would likely or probably result from his conduct, and that with reckless indifference to consequences he consciously and intentionally did some wrongful act or omitted some known duty which produced the injurious result.

In a prior 2004 case,14 the Supreme Court of Virginia explained the three levels of negligence in Virginia:

The first level, simple negligence, involves the failure to use the degree of care that an ordinarily prudent person would exercise under similar circumstances to avoid injury to another. The second level, gross negligence, is a degree of negligence showing indifference to another and an utter disregard of prudence that amounts to a complete neglect of the safety of such other person. This requires a degree of negligence that would shock fair-minded persons, although demonstrating something less than willful recklessness.

The third level of negligent conduct is willful and wanton negligence. This conduct is defined as acting consciously in disregard of another person's rights or acting with reckless indifference to the consequences, with the defendant aware, from his knowledge of existing circumstances and conditions, that his conduct probably would cause injury to another.

What, then, constitutes gross negligence or willful misconduct regarding LTC facilities’ acts and omissions in the COVID-era?

Active COVID litigation has not yet come to Virginia. Sean Byrne, managing partner of the Byrne Legal Group, recently reported, “We are not yet seeing claims and lawsuits that directly allege COVID-related liability theories. We will surely see some—they just haven’t matured yet to the point of being claims or suits.” Many other experienced medical malpractice defense and plaintiffs’ attorneys confirmed they were unaware of any current COVID cases against Virginia LTC facilities.

But COVID cases alleging gross negligence and/or wanton and willful conduct have been filed in other states and may provide insight into the acts and omissions that might meet Virginia’s applicable standards.

A civil complaint brought on behalf of 15 residents, 10 of whom died, has been filed against a Pennsylvania nursing facility alleging the facility engaged in “reckless, willful and wanton conduct” when it failed to take sufficient steps to prevent the spread of the coronavirus.

The proposed Safe to Work Act suggests that a mere failure to adhere to government guidance might constitute gross negligence or willful and wanton conduct. But authoritative federal and state guidance has been, and remains, a moving target. The standard of care applicable to any COVID-era case, therefore, will be very time-specific.

If a plaintiff manages to overcome these legal challenges, will juries be receptive to claims against LTC facilities for the death of their residents? The Virginia attorneys with whom we consulted are split on this question. Some think any COVID-related case against a local LTC facility will be a tough sell. Others think it depends on the timing and other circumstances of the alleged acts or omissions. Multiple plaintiffs’ attorneys reported they won’t even consider taking a case that involves coronavirus exposure that occurred early in the pandemic before definitive government guidance was provided. Neither the CDC, CMS, nor the Virginia Department of Health (VDH) began issuing COVID-specific guidance until April.

Most attorneys seem to agree that even if EO60 immunity doesn’t automatically apply in non-coronavirus exposure cases, juries will likely only be sympathetic to plaintiffs in cases of gross negligence or willful and wanton conduct anyway.

There are more questions than answers at this point about future COVID-era cases against LTC facilities in Virginia. When will EO60 or other immunity provisions apply? When it does, what acts and omissions will constitute gross negligence or willful misconduct? Will plaintiffs be required to meet these heightened standards in noncoronavirus exposure cases? How receptive will jurors be toward the plaintiffs and defendants in these cases?

But whether it comes as a tidal wave or a trickle, COVID-related litigation against LTC facilities is coming to Virginia and, as any litigator will tell you, knowing the questions is half the battle.

Beth Norton is a former cardiac nurse and a graduate of the University of Virginia School of Law. She spent several years with Kaufman & Canoles and Hancock Daniel & Johnson representing healthcare providers in compliance, contract and litigation matters. Now, through her firm Norton Health Law in Charlottesville, she represents consumers in a variety of healthcare legal matters, including those related to elder and disability law, as well as general healthcare consumer law, particularly healthcare contracts and litigation.