As of July 20, 2020, the Centers for Disease Control and Prevention reported more than 3.7 million COVID-19 cases, resulting in more than 140,000 deaths. The virus is primarily transmitted person-to-person by droplets, aerosols and fomites. Nursing homes, rehabilitation and long-term care centers and facilities caring for people with psychiatric disabilities assist persons of a wide range of ages, but the majority of residents are elderly. Individuals that require the services of these facilities are particularly vulnerable to respiratory pathogens such as the influenza virus and present environments conducive to infections which can be introduced into these facilities by staff, visitors and new residents with devastating consequences.
Nursing home residents account for nearly one in ten of all COVID-19 cases in the United States and more than a quarter of the deaths. Data shows that nursing homes have been overwhelmed by the effects of the virus. Nursing homes hold large populations of elderly residents many of whom have compromised immune systems due to pre-exiting medical conditions and age. Given the typical living arrangements which place patients and residents within close proximity to one another and caregivers supporting numerous individuals in the same facility, nursing homes and long-term care facilities present substantial opportunities for the spreading of infections. Nursing homes frequently provide a community-based atmosphere, consisting of “family” meals, entertainment, fitness classes, group activities such as card or board games, and a general encouragement of social interaction.
Within high-risk groups of our population, these environments and related activities offer the perfect opportunity for a virus such as COVID-19 to spread if proper precautions, including social distancing and enhanced hygiene protocols, are not established, initiated and followed. The CDC has set out specific guidance and recommendations for Nursing Homes & Long-Term Care Facilities to address potential COVID-19 exposures. Failure to follow a prevention and control program in these settings can result in illness, death and litigation. Oversights in the prevention and control of COVID-19 ultimately leads to potential legal exposure for nursing homes, long-term care facilities, individual healthcare providers, service providers and contractors that provide dining or cleaning services, as well as the individual employees themselves at a higher risk for becoming the target of litigation.
An example of the potential scope of legal liability faced by nursing homes and similar facilities as a result of the pandemic can be seen in a proposed class action filed in the United States District in Massachusetts pursuant to the Fourteenth Amendment and 42 U.S.C. § 1983. Sniadach, et. al. v. Walsh, et. al., stems from COVID-19 infections and deaths afflicting 160 Veterans that resided at the Soldiers’ Home in Holyoke, Massachusetts resulting in the deaths of 76 Veterans. The proposed class action alleges that the Soldiers’ Home, its management and staff failed to follow proper COVID-19 procedures.
The Holyoke facility was investigated and a report entitled “An Independent Investigation Conducted for the Governor of Massachusetts” was published on June 23, 2020 which examines the causes of the outbreak. The report
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