Photo of Megan Sullivan

Megan K. Sullivan is an associate with the Complex Litigation practice group in MG+M’s Boston, Massachusetts office. Prior to joining MG+M as an associate, Megan was a paralegal at the firm for two years while working towards finishing her law degree in the evenings.

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.[1]  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.[2]  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.[3]  The report
Continue Reading COVID-19’s Impact on America’s At-Risk Population: Risk & Legal Exposure – Liability & Immunity

The COVID-19 crisis has had an impact on every court across the nation, both at the state and federal levels, postponing and delaying countless civil litigation hearings and trials. There is still a great deal of uncertainty as to when social distancing guidelines will be relaxed and when states will begin to resume normal business activities. The continued postponement of hearings and trials will result in a tremendous backlog of cases vying for the attention of the courts, as litigators across the nation do their best to zealously advocate for their clients.

As this country battles the continued wave of COVID-19 cases and prepares for the possibility of a second wave of COVID-19 infections in the United States at some point in the not so distant future, litigation has already commenced as a result of the COVID-19 pandemic.

Princess Cruise Lines

At least a dozen lawsuits have been filed against Princess Cruise Lines as a result of passengers affected by the COVID-19 outbreak, and that number continues to climb.

On March 7, 2020, Plaintiffs Ronald Weissberger and Eva Weissberger filed suit in the United States District Court for the Central District of California, alleging negligence and gross negligence by the Defendant, Princess Cruise Lines Ltd., for its “lackadaisical approach” to the COVID-19 pandemic. The Complaint detailed that one of Princess Cruise Lines’ ships, the Grand Princess, departed out of San Francisco on February 21, 2020, and returned to Oakland on March 4, 2020, where it was forced to dock until all passengers could be moved to military bases for quarantine.

On March 13, 2020, Plaintiffs Brian Sheedy and Melanie Sheedy filed an identical complaint against Princess Cruise Lines Ltd., also in the United States District Court for the Central District of California.

Under California law, the elements that must be met to show negligence are “(1) defendant’s obligation to conform to a certain standard of conduct for the protection of others against unreasonable risks (duty); (2) failure to conform to that standard (breach of duty); (3) a reasonably close connection between the defendant’s conduct and resulting injuries (proximate cause); and (4) actual loss (damages).” Corales v. Bennett, 567 F.3d 554, 572 (9th Cir.2009) (quoting McGarry v. Sax, 158 Cal.App.4th 983, 994, 70 Cal.Rptr.3d 519 (2008); Lawman v. City & Cty. of San Francisco, 159 F. Supp. 3d 1130, 1152 (N.D. Cal. 2016).

According to the Weissberger and Sheedy Complaints, none of these Plaintiffs have tested positive for COVID-19. The only alleged damages include exposure to the risk of immediate physical injury, emotional distress and trauma from the fear of developing COVID-19. A cause of action for negligence requires damages in the form of “detrimental physical changes to the body” and this physical injury “for the purposes of parasitic emotional distress damages required actual harm.” Macy’s California, Inc. v. Superior Court, 41 Cal. App. 4th 744 (1995). A plaintiff must prove detrimental change to his or her body to be able to recover for parasitic emotional
Continue Reading COVID-19 Litigation – Fear of Injury and Emotional Distress Claims