Protecting Long-Term Facilities in a Mass Tort Era

by Jeff Shaw

Legal protections are complicated in the world of COVID-19.

By Matt Keenan and Jenn Hatcher, Shook, Hardy & Bacon

The owners and operators of long-term care facilities know better than almost everyone does how the destructive evil known as COVID-19 has changed lives in every shape, manner and form. It has also dramatically altered the most basic standards that have governed the long-term care (LTC) industry for years.

And yet, today there remains enormous uncertainty about where the science and medicine will take us. With so much ambiguity at play, from the evolving science to the blame game, plaintiffs’ lawyers may take advantage and seek opportunities for class action suits against your facility. In these unusual times, the best defense is a good offense ranging from planning to reimagined protocols.

If owners were hoping for answers from a Senate report on how the nation handled the pandemic in nursing homes, they may have found a brief respite. On July 1, three U.S. Senators — Bob Casey (D-Pa.), Gary Peters (D-Mich.) and Ron Wyden (D-Ore.) — released a report on COVID-19 in nursing homes. The 44-page document, offers their assessment of how this crisis became a national tragedy.

It is noteworthy that the report does not blame operators or their employees. Instead, it condemns the administration, citing, among other things, insufficient access to diagnostic testing, missteps in procurement and distribution of personal protective equipment (PPE), and other failures in planning and execution.

The document, while comprehensive in its criticisms of the White House, is noteworthy by its omission — failing to note how shifting scientific recommendations accompanying equipment and testing inadequacies compounded the challenges facing long-term care providers.

Confusion leads to legal protections

Science, they say, is not a matter of opinion. It is to be accepted and therefore followed. However, what if the science and the scientists whose recommendations you must follow are consistently wrong? In addition, if you are a healthcare provider to any of the 1.3 million Americans living in a long-term care facility who depends on the information, what do you do?

This unprecedented uncertainty of how and where this virus spreads leads to an equally unprecedented series of state governors enacting immunity legislation for healthcare providers. Rarely seen in this era of sharp political division, governors on both sides of the aisle took uniform action to grant protection to healthcare workers, including LTC providers.

They recognized that expecting LTC providers to hit a moving target while blindfolded was an impossible task. They recognized that those working in our LTC facilities need not only PPE but also legal protection in order to protect themselves while caring for their residents.

To be sure, this movement for further immunity has brought out the critics. The plaintiff’s bar, for one, has described this as unfair. One attorney described it as a “get out of jail free card.” AARP couched it in these terms: “While there may be some circumstances beyond facilities’ control and for which they should not be held responsible, it is essential that long-term care providers, as well as healthcare providers more broadly, remain responsible for any negligent actions.”

What now?

Admitting that LTC facilities have been forced to cope with circumstances beyond their control is a vast understatement. These uncontrollable factors include unavailable testing technologies described extensively in the Senate report, including inadequate, untimely and often defective supplies and assistance in securing PPE.

More troubling is the report’s finding that not all eligible nursing homes on the distribution lists even received their promised equipment. However, the constantly changing scientific recommendations and treatment therapies is equally culpable in this matrix.

LTC facilities must come together to carefully evaluate the recommendations from the Senate report, among others. Clearly, we need better data collection, not just of cases and deaths, but also of resources available in each LTC facility.

LTC facilities need adequate funding to mitigate the virus’ effects. They need increased testing capabilities and more PPE. They need clear guidance on how to move forward as states move through the phases of reopening and, in some cases, closing again.

Flexibility and understanding that recommendations and policies continue to change as the science evolves is key to LTC facilities withstanding the burden the pandemic has placed on their shoulders. They need clear guidance on how to move forward as states move through the phases of reopening.

The landscape continues to shift, and the science continues to evolve. Through it all, the front-line workers will continue to put patients’ safety first and foremost each and every day.


Partner Matt Keenan of Shook, Hardy & Bacon specializes in defense of corporations in mass tort proceedings. Associate Jenn Hatcher handles complex litigation and class action matters.

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