[Post updated April 18, 2020] When this post was first written one month ago, there were just 60 coronavirus deaths in the United States. Worldwide, an estimated 159,000 people have been infected (although many believe that number is underreported as some folks with the virus are asymptomatic). Today that number is 38,928 deaths in the U.S. and 2.3 million cases worldwide.
While the death rate from COVID-19 is estimated to be 2%, many of those who have died are elderly nursing home residents. In fact, the CDC says that those over the age of 60 and those with serious health conditions are most at risk. In fact, about 20% of all coronavirus deaths in the United States occurred at nursing homes.
Lest anyone believe this is a shameless plug for lawyers seeking to sue nursing homes, it is not. We begin this post with a huge thank you to all those in the medical profession - including those working in nursing homes - for taking care of us during this coronavirus crisis. These folks don't have the ability to practice social distancing and can't work remotely. Our goal is to answer the questions that many people are asking today. Is my mother safe at her nursing home? What rights does she have? What can we do - or should nursing homes do - to keep our loved ones safe?
Although some COVID-19 outbreaks in nursing homes can be tied to a poor staff hygiene, mostly it is the fault of administrators. Poor planning. Poor preparation. No disaster plans. Poor training. Poor staffing and not enough protective equipment on hand.
Last year we saw several outbreaks of deadly candida auris in California and New York nursing homes. We thought facilities would learn a lesson and be better prepared for future infectious outbreaks. Many didn’t.
Life Care Center of Kirkland – Coronavirus Ground Zero
Ground zero for coronavirus in the United States is the Life Care Center of Kirkland. This 190 bed for profit facility has been devastated by the virus. 37 people associated with the facility have died. We understand as many as 70 staff members have also been infected.
Some folks think that when a patient tests positive for coronavirus, the simple answer is to simply move the remaining patients. Moving patients to other facilities isn’t as easy as it sounds, however. Administrators of other nursing homes must worry about the virus spreading to their existing patients. With hospital beds severely limited, many patients are stuck with nowhere to go.
By stuck, we mean they can’t leave, can’t have visitors, and can’t move about the facility either. They are alone in their rooms with many of their caregivers in quarantine themselves or out with the illness. Their conditions are more like that of death row inmates. The anguish for them and family members is beyond comprehension,
The Centers for Disease Control and Prevention (CDC) and state officials are investigating how the coronavirus epidemic at Life Care Center of Kirkland began. While that is certainly important for disease control specialists to know, that information provides little solace to the families of those who died and those still at extreme risk.
Already Washington state and the feds have levied $600,000 of fines against the facility, mostly for the poor way they responded to the coronavirus pandemic. The state says The Life Care Center of Kirkland did not have an adequate infection control system in place and failed to provide quality care. Regulators also found that the facility failed to notify state officials about the increasing rate of coronavirus infections among residents, failed to manage those residents who were ill and failed to have a backup plan after the center’s doctor became ill.
That is little solace to the friends and families of those that died.
In response to the spreading pandemic, officials in many states are making disaster proclamations and issuing executive orders banning visitation at nursing homes. In the absence of official proclamations, some nursing home administrators are taking that action themselves.
In this post we examine the rights of nursing home residents and their families. (We are not soliciting coronavirus clients. In most states, victims of nursing home neglect or medical malpractice have at least one year to bring a claim – 3 years in Washington state for personal injury or medical malpractice. This post is informational only and written to provide answers for anxious families.)
Can a Nursing Home Prevent Family Visits Because of Coronavirus?
If you are looking for a black and white answer, you are going to be disappointed. Nursing homes have a duty to keep their residents safe. Staff too. When a pandemic strikes, allowing visitors from the outside could unleash a deadly virus or disease on a very vulnerable population.
With coronavirus, the decision to bar visitors is more complex. Many carriers of the virus don’t show any symptoms meaning there is no way for the facility to know who is infectious.
As of this writing, most states have moved to prevent nursing home visits. Some states have exceptions for end of life visits.
Nursing home administrators and regulators are generally sensitive to patients’ rights. Medicare rules require facilities to accommodate visits by family and friends. The coronavirus pandemic has resulted in competing interests. The right to visits versus the legal obligation to protect patients. The coronavirus threat will end soon enough but until it does the safety of patients and staff generally trumps the right to have visitors.
The bottom line? Each of us may draw the line as to what is reasonable a bit differently but nursing homes and health authorities probably have the right to keep you from visiting grandma during a declared health crisis. It also makes sense, although it is hard for patients and their families. [On April 13th Mahany Law offered Wi-Fi enabled tablets for nursing home patients and family members who were prevented from visiting and who otherwise didn’t possess video capable smartphones.]
Are Nursing Homes Responsible for Coronavirus Deaths?
Courts haven’t dealt with pandemics in recent years. SARS and MERS were quickly contained. Coronavirus, however, has become a much bigger problem.
Recently we accepted several nursing home wrongful death cases involving deadly outbreaks of candida auris. That is a fungal infection spread by physical contact and probably person to person. Like the situation at Life Care Center of Kirkland, the outbreak raced through a handful of nursing homes. Several residents of those facilities died.
The CDC said outbreaks can be stopped simply by practicing good hygiene practices. We think the same thing can be said of coronavirus, although COVID – 19 is so new that we are still learning.
The problem with COVID – 19 (we use coronavirus and COVID 19 interchangeably) is the incubation period. Right now, experts are saying that could be anywhere from 2 days to 14 days. As we learn more, these factors become very important. Did an outbreak infect everyone before being detected or did the facility fail to act properly once the first case was detected?
The transmission of coronavirus involves more than poor hygiene. Did it spread by simple close proximity of an asymptomatic carrier or did the facility fail to take action after knowing there was a problem? Should they have recognized the problem earlier? We have our ideas but that is a different discussion for a different day.
Some of the facilities affected by candida auris had significant staffing problems and poor ratings from Medicare. The Life Care Center of Kirkland, however, was rated five stars, “much above average” by Medicare. That doesn’t mean the facility isn’t at fault, however.
Right now, we are especially worried about the future spread of coronavirus if it gets into a poorly rated and/or an understaffed facility. As hard as it is to believe, the results could be much worse.
Lexington Medical Center Extended Center
How much have we learned from the disaster at the Life Care Center of Kirkland? That is being tested now as a coronavirus case was just confirmed at the Lexington Medical Center Extend Care facility in Lexington, South Carolina. Unlike the nursing home in Washington, this facility is huge; 388 beds. It is also government run and has a below average overall rating from Medicare. Its health inspection rating is worse, just one star or “much below average.”
If there is any good news, it appears that the nursing home transferred the sick patient to the main hospital. In our experience, hospitals provide better training to staff and have more experience in isolation techniques.
Stacking Bodies in a Shed?
Nursing homes are required to immediately report infectious outbreaks. If the CDC and state officials don’t know about an outbreak, they can assist nor can they begin to warn others who may have been exposed (”tracking”).
New Jersey police responded to an anonymous tip about bodies being “stacked” in an outdoor shed. Police found the bodies of 17 dead patients at the Andover Subacute and Rehabilitation Center I and II, the state’s largest licensed facility.
As of today, it appears all residents have now been tested. 76 tested positive as did 41 staff members.
Medicare’s ranking for Andover Subacute and Rehabilitation Center? Patient care and staffing were both ranked “much below average.”
Coronavirus Crisis - What Can Nursing Homes and Families Do?
These statistics and stories about the care provided to our family members in nursing homes is unacceptable. If you are a family member, the advice is easy (although painful). Avoid unnecessary visits (assuming visits are even allowed). Assuming you can’t visit, call as often as possible. Stay in touch, send cards and flowers. (We realize that in many states you can’t buy flowers or facilities won’t accept them.)
Obviously, end of life visits are a different story. Even then, still practice good hygiene and avoid wandering around the facility. If you call in advance, we know that several nursing homes are making available a “clean room” for end of life visits. (Note that the CDC makes no exception even for end-of-life visits for those family members who have fevers or coronavirus symptoms.)
If a loved one is in assisted living and you can handle their daily needs, consider moving them into your home until the crisis blows over.
Before visiting, review the most recent coronavirus information online
from the CDC. As of March 15, the CDC says this about nursing home visitation:
“For ALL facilities nationwide: Facilities should restrict visitation of all visitors and non-essential health care personnel, except for certain compassionate care situations, such as an end-of-life situation. In those cases, visitors will be limited to a specific room only. Facilities are expected to notify potential visitors to defer visitation until further notice (through signage, calls, letters, etc.). Note: If a state implements actions that exceed CMS requirements, such as a ban on all visitation through a governor’s executive order, a facility would not be out of compliance with CMS’ requirements.
“For individuals that enter in compassionate situations (e.g., end-of-life care), facilities should require visitors to perform hand hygiene and use Personal Protective Equipment (PPE), such as face masks. Decisions about visitation during an end of life situation should be made on a case by case basis, which should include careful screening of the visitor (including clergy, bereavement counselors, etc.) for fever or respiratory symptoms. Those with symptoms of a respiratory infection (fever, cough, shortness of breath, or sore throat) should not be permitted to enter the facility at any time (even in end-of-life situations). Those visitors that are permitted, must wear a face mask while in the building and restrict their visit to the resident’s room or other location designated by the facility. They should also be reminded to frequently perform hand hygiene.”
Nursing homes are obviously urged to follow the CDC’s visitation guidelines above. In addition, nursing homes are being asked to:
- Cancel communal dining
- Cancel group activities
- Increase patient and staff screenings (Staff should be screened twice per shift and sent home if exhibiting symptoms)
- Encourage residents to engage in social distancing and hand sanitation
- Vendors should not enter facility unless absolutely necessary
- Instruct anyone allowed in the facility to monitor symptoms for 14 days and report any developing symptoms to the facility.
The Mahany Law Team – Nursing Home Neglect Lawyers
The nursing home neglect lawyers at Mahany Law are actively investigating nursing home coronavirus deaths.
Our focus is protecting our families and learning all that we can about this evolving healthcare crisis. Our prayers are with those in nursing homes, their families and the brave women and men who go to work every day in our skilled nursing facilities. Many of them are overworked and lack the test kits and protective gear they require.
Although many courts have announced temporary closures, we remain working and available for consultation. For more information, contact us online, by email [hidden email] or by phone 833-201-1555. (Cases accepted nationwide - we have lawyers throughout the United States.)