Managing COVID-19 cases along with various local, state, and federal guidelines and legislation continues to be a moving target for the long-term care industry.  As of November 2021, the COVID-19 Complaint Tracker reports 501 complaints filed in the health/medical sector, with 337 for wrongful death.  Outside of possible immunity provisions, operators of nursing homes and other senior living facilities must be prepared to defend these cases based on medical record and relevant business documentation.

Immunity Provisions

While the Public Readiness and Emergency Preparedness Act (PREP Act) and certain states immunity provisions have been enacted to provide some protection to senior living facilities, they have not preempted state tort claims in all cases to date.  In October 2021, the Third Circuit Court of Appeals determined that deaths related to nursing homes’ negligence in relation to the management of COVID-19 did not fall under the PREP Act, and remanded those cases to state court.  However, beyond this decision, some legal experts believe state courts will provide immunity to long-term care facilities and workers when looked at on a case-by-case basis.

Types of COVID Claims

Cases filed to date against long-term care facilities have fallen in the following general categories:

• Failure to prevent/mitigate the spread of COVID-19
• Failure to recognize a change in condition related to COVID infection
• Failure to notify family and/or physician of COVID related issues
• Delay in treatment
• Failure to prevent asymptomatic workers from spreading the virus
• Inadequate staffing
• Inadequate or inappropriate use of PPE
• Negligent infection control practices
• Failure to follow local and/or federal guidance
• Negligent treatment of non-COVID patients including delays in treatments and/or surgeries

Documentation in the medical record is the first line of defense in responding to these claims.  However, in COVID litigation, a broader scope of records and materials also comes into play, including, but not limited to:

• Corporate and facility policies and procedures, particularly updates in response to local/state/federal directives
• Staffing records, including attendance, training, and meeting minutes
• Housekeeping records
• Visitation policies and records
• Dining services records
• Activity records
• Purchasing/supply chain documentation
  • Efforts to obtain and provide PPE and COVID tests
  • PPE and COVID test invoices, manufacturers’ numbers
• COVID Task Force/key committee meeting minutes
• Incident reports
• Infection control policies, procedures, updates
• Vaccination education/clinic records
• Testing protocols and records
• Social distancing and isolation measures
• Emergency response plans/implementation
• Articles/videos about the facility
• Acknowledgements from patients/residents/families/the community

There are many individuals within a healthcare facility who can provide this type of information, likely expanding the scope of those involved in the defense of these cases.  For example, discovery can include responses from procurement officers, emergency response leaders, facility administrators, nursing director, department leaders, human resources, compliance officer, chief information and security officer, chief technology officer, and the quality assurance committee.

The Solution – COVID-19 Comprehensive Integrated Timeline Tool

Excelas has worked with acute care providers, skilled nursing facilities and assisted living facilities in response to COVID claims and litigation.  In typical litigation, the key tool used to support counsel in assessing the clinical facts is a medical chronology that details the significant medical events related to the allegations.  In COVID litigation, it is necessary to incorporate the individual patient’s medical chronology with the organization’s policies and procedures (as listed above) and local, state, and federal guidelines to demonstrate the standard at the time an event occurred.

Excelas has built a database with over 10,000 documents of federal and state guidance (for select states.)  This database is continually updated as new guidelines become available and the timelines can be used again and again, integrating the information into the relevant clinical  findings for individual cases.  Our clients provide internal COVID response documents which are also incorporated into the database for their specific healthcare organization.

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.  Again, the advantage to our clients is the local, state, and federal guidance is captured once then used for multiple cases.

Contact us today for a demonstration of how Excelas’ C-19 Comprehensive Integrated Timeline Tool can assist you in defending the onslaught of COVID challenges.