Excelas had the opportunity to hear Robin Khanal and Karen Shimonsky of Quintairos, Prieto, Wood & Boyer speak on COVID litigation trends at the DRI Long-Term Care and Senior Living conference.  In their presentation titled “Stay 6 Feet Ahead of Opposing Counsel: A Nationwide Update on COVID-19 Litigation Trends and Practice Strategies to Combat Them” they highlighted actions by plaintiff counsel, PREP Act and state immunities, and CMS regulations and waivers.

They noted large plaintiff verdicts, such as the $53 million verdict against New Jersey VA homes, as well as media attention and advertising by plaintiff attorneys, are all factors which jurors take into consideration as “benchmarks” when awarding damages.

The speakers indicated that COVID-19 related lawsuits have been filed in over 400 courtrooms across the country.  Allegations include failure in:

• infection control
• availability of, or proper training of staff in use of PPE and other countermeasures
• monitoring incoming patients, staff, and visitors for the virus
• sufficient staffing
• recognizing changes in condition
• warning families, physicians, and authorities as to status of COVID in the facility

There are also cases which allege failure of care during the pandemic including staffing levels, falls, wounds, and weight loss, referred to as “COVID-impact” claims.

The speakers reviewed COVID-19 immunities at the state and federal level.  There was an expectation by long-term care providers that the PREP Act would provide protections, so many defendants have removed their cases to federal court.  However, many district courts have rejected moving these cases to federal court and remanded to state court.  Several states have issued immunities for healthcare and senior living facilities through legislatures or executive orders.  The strength of these state immunities, as well as the strength of arbitration agreements, should be considered when determining whether to litigate in the state court.

The implications of the Centers for Medicare & Medicaid Services (CMS) waivers were reviewed.  Some parties indicate that the CMS waivers have had a negative impact on care.  CMS has added and terminated waivers throughout the public health emergency (PHE) as needed.  The speakers stressed the importance of knowing what regulations were in place at the time of the alleged incident, including the waivers related to:

• Telehealth
• QAPI (Quality Assurance and Performance Improvement), which allowed providers to narrow the scope of their plans to focus on adverse events and infection control (waiver terminated May 7, 2022)
• Discharge planning, which waived the use of standardized patient assessment data to expedite discharge and movement of residents among care settings (waiver terminated May 7, 2022)
• Clinical records, to allow for ten working days to provide copy of records (waiver terminated May 7, 2022)
• Paid feeding assistants, to allow for one hour of training rather than eight hours (waiver terminated June 6, 2022)
• Training of CNAs to allow for employment of uncertified aides for longer than four months (waiver terminated June 6, 2022)

When preparing for the defense of COVID related cases, the speakers remarked that many facilities had put their own systems in place even though the waivers were declared.  These actions should be emphasized, as they went above and beyond the requirements of CMS and had a positive impact on resident care.  It is very important to be aware of any proprietary software programs utilized by a facility, including specific reports, visitor tracking, electronic medical records, and floor plans.  They also discussed reviewing the survey history of a facility, particularly infection prevention and control.  Knowing the relevant guidance at the time of the event is critical.  The speakers noted that at this point COVID cases should be litigated and tried to verdict.

Excelas has extensive experience assisting clients in managing claims and litigation related to COVID.  The Excelas Comprehensive Integrated Timeline Tool (CITT) contains an archive of over 10,000 documents of Federal and State Guidance (for select states).  Juxtaposing the data from the individual’s medical records, the healthcare facility’s policies/procedures, and published guidelines/standards in an easy-to-read timeline allows counsel to clearly tell the story of the case and demonstrate the practices and the standards in place at the time the alleged event occurred.