March 17, 2021
By James “JJ” Maskowitz, partner at Hall Booth Smith, PC
If there’s one thing we learned in 2020, it’s that completely unexpected health and/or safety issues can and will arise at any time. The swiftness of the global spread of the novel coronavirus caught many public health professionals and government leaders off guard and made for a chaotic and reactive situation that underscored the importance of developing, implementing and frequently updating policies and procedures to be better prepared for future emergencies.
Long-term care facilities had to quickly create policies and procedures for new scenarios such as confirmed COVID tests, possible or suspected exposures to the virus, precautionary quarantine or isolation, and modified or suspended visitation for loved ones.
Some of those measures align with how facilities typically respond to other highly contagious diseases—such as residents who return from the hospital with MRSA, scabies or influenza—while others were completely new and evolved quickly as the science determining how the coronavirus spreads was being updated by experts on an almost daily basis.
2020 taught us that proper documentation is more important than ever before. It is often the backbone of any defense strategy in a long-term care setting, and it is even more critical now amid the public health emergency that has claimed more than 500,000 lives in the United States alone.
In addition to documenting the dates, times and details about each resident and staff member who tested positive for COVID-19 or had a possible exposure or suspected case, facilities must keep meticulous and detailed records about circumstances and actions such as:
- Was the resident’s sleeping space a single room or a multiple-bedroom unit?
- Was the person isolated as soon as symptoms appeared, and were others who had been in close contact with the person quarantined or isolated?
- What efforts were made to investigate the source of exposure?
- How many other residents were tested, and for those who were not tested, why and how was that determination made, and did they later develop symptoms or test positive?
- Did the facility implement its Emergency Preparedness Plan, and if yes, were there any deviations from that plan?
- What additional cleaning/disinfecting was done and by whom, were EPA-registered disinfectants approved for emerging pathogens used, and which surfaces/equipment were disinfected?
- Was hand sanitizer readily available to residents and staff?
- What personal protective equipment (PPE) was used or requested?
- What was the intake process for screening for potentially ill people at initial points of encounter?
- When were visitors restricted to the building, and how were the restriction policy/terms communicated?
- Did the facility modify its existing policies and procedures to address COVID-19, and what necessitated those revisions? Was staff trained on the modifications?
- Did the facility receive any specific instructions or guidance from local, state or federal governmental agencies or public health authorities?
- How many residents died during the outbreak, and how many were confirmed to be COVID-19 related? How many people tested positive and recovered?
- Which staff members (employees, contractors and vendors) were present for which shifts and dates, and where they screened for any possible symptoms before each shift?
- Can you demonstrate proper management of food service, laundry and medical waste?
Facilities must also keep copies of any written internal and external communications with residents, family members, governmental entities or the public. That includes contemporaneous notes about verbal conversations, phone calls and meetings, to the extent that such records exist.
Another proactive measure is to regularly update infection-control procedures, especially after a citation from an agency, such as the Agency For Healthcare Administration, has been issued. Updating these procedures after a citation demonstrates that the facility is following proper protocol to prevent the spread of infection and can help reduce litigation risk as the plaintiff’s bar increasingly relies on past citations for infection control to help develop their claims against long-term care facilities for failure to prevent residents from contracting COVID-19. No matter how inconsequential the citation may seem, documenting that the issue was given proper attention and changes were made to prevent a recurrence will demonstrate that the provider is doing everything within the applicable standard of care to prevent the spread of infections.
Despite the immunity protections of the PREP Act, COVID-19 litigation is already piling up. It is critical to have a proactive litigation strategy that includes a comprehensive risk mitigation plan centered on regularly updated policies and procedures, an ability to demonstrate that staff were trained and followed those policies and procedures, and proper documentation.
Internal audits can help reveal possible gaps in staff training or understanding of expectations, and feedback or criticism from residents and their family members should also be taken seriously because it often presents an opportunity for improvement.
Many lawsuits try to skirt around the PREP Act by claiming liability for other things that are common among geriatric residents, such as falls, pressure sores, skin tears, dehydration, malnourishment, medication errors and changes in condition not documented. When someone hasn’t been able to see their loved one for many months because of lockdowns, any change in the resident’s health or appearance can seem more pronounced, and the family may be more apt to blame the provider.
Exceptional bedside manner and frequent communication with family members can help reduce litigation risk because it keeps them informed and feeling more confident about all the measures the facility is taking to prevent illness and keep their loved ones safe from harm.
James “JJ” Maskowitz is a partner in the Tampa, Florida, office of Hall Booth Smith, P.C. He defends physicians, hospitals, long-term care and aging facilities, insurers and other health care providers in a wide range of medical malpractice, liability and other litigation. He can be reached at email@example.com.