Visits to Nursing Homes to be Temporarily Restricted Nationwide
About two and a half million Americans live in nursing homes and assisted living facilities. Unfortunately, the coronavirus is particularly deadly to the elderly – so much so that about 80 percent of all COVID-19 deaths occur among the over-65 age group. The danger to people 80 and older is even more acute, with an overall mortality rate that has been estimated as high at 18 percent.
The high death rate among octogenarians (and the elderly in general), is dramatically higher than any other age group for two main reasons:
- The elderly typically suffer from weakened immune systems due to the natural effects of aging; and
- The elderly often suffer from underlying conditions such as diabetes which, when combined with coronavirus symptoms, prove particularly deadly. Elderly patients with respiratory conditions such as emphysema are particularly at risk.
Nursing Homes Take Action
Nursing home residents are among the most vulnerable people in society right now. As a consequence, hundreds of nursing homes have been restricting visitors or even banning them altogether. Although this measure may seem harsh, its logic is impeccable during a time when merely hugging your grandmother could kill her. With the exception of staff, relatives are the people most likely to transmit the virus to residents.
On March 10th, the American Health Care Association, an organization representing over 13,000 nursing homes and similar care facilities, issued a joint recommendation together with the National Center for Assisted Living, urging nursing homes to impose severe visitation restrictions to protect against the spread of COVID-19.
Although these recommendations are non-binding, the Department of Veterans affairs announced the same day that at least 134 nursing homes throughout the nation had already implemented a “no visitors” policy. It is likely that the number of nursing homes implementing such a policy was far greater than 134. The situation has already changed, however. National State of Emergency Guidance on Nursing Home Visits
On March 12th, President Trump, acting on a recommendation from the Centers for Disease Control and Prevention (CDC), declared a national state of emergency, which not only freed up billions of dollars to fight the COVID-19 virus, but also provided the following guidance to nursing homes:
- Suspend all visitation, even from relatives, except for extraordinary situations such as when the resident is facing imminent death;
- Screen everyone who comes into the facility, whether or not they are coming to visit a resident;
- Temporarily ban all volunteers and non-essential healthcare personnel (HCP);
- Suspend all group activities;
- Suspend communal dining; and
- Frequently screen residents and staff for coronavirus symptoms.
Although the federal ban is not mandatory, New York Governor Andrew Cuomo announced a similar, mandatory ban on nursing home visitation that took effect the next day. The New York ban is arguably even more restrictive, since it requires nursing home staff to wear masks.
How Long Will the Restrictions Last?
Unfortunately, it is impossible to say with confidence how long the coronavirus restrictions on nursing home visitation will remain in place. Ultimately, that depends on how long it takes to contain the virus, and epidemiologists are uncertain as to how long that will take. Estimates of the length of time that social distancing measures, including nursing home visitation restrictions, will remain in place range from a few months to over a year.
Background: The Seattle Outbreak and Its Consequences
Early in the US epidemic, the Life Care Center of Kirkland, a Seattle-area nursing home, became Ground Zero for the coronavirus outbreak in the United States after staff members worked while ill and spread the virus to nursing home residents. At least 35 deaths have been traced to this one nursing home, representing the first cluster of infections anywhere in the United States.
All told, 129 COVID-19 cases linked to the Life Care Center of Kirkland have been identified so far – 81 residents, 34 staff members, and 14 visitors. The Life Care Center enjoys the unenviable distinction of serving as the country’s largest single source of coronavirus deaths and the ultimate source of about one-quarter of all coronavirus deaths nationwide.
Just How Contagious Is COVID-19? The Percentages
The numbers at the Life Care Center, already shockingly high, look even worse when you take into account the size of the establishment. The Life Care Center housed only 120 residents at the time of the outbreak – two-thirds of whom became ill and over a quarter of whom died.
The grim numbers provide a reminder of just how infectious COVID-19 really is, as well as the necessity of containment measures that might seem draconian under ordinary circumstances. The rate of contagion among the elderly, however, is likely to somewhat exceed the rate of contagion among the general public, because of the weakened immune systems often suffered by the elderly.
Why It Happened: Lessons from the Life Care Center TragedyA number of factors combined to create the “perfect storm” of COVID-19 infections at the Life Care Center. Most prominent among these are:
- No paid sick leave: Failure to offer paid sick leave to staff meant that nursing home staff members were likely to work while ill because they had no sick leave and would face financial difficulties if they took time off, suggested Dr. Jeff Duchin, public health officer for Seattle and King County. The outbreak represents an unintended consequence of the limited availability of sick leave throughout the United States.
- Slow response time: Although staff noticed an outbreak of respiratory illness by February 10th, it wasn’t until February 26th that Life Care Center notified Washington state officials. After reviewing 911 call logs, the Seattle Times suggested that staff may have noticed the outbreak even before February 10th. That amount of time is virtually an eternity in epidemiology.
- Bureaucratic disorganization: Confusion reigned among both nursing home administration and Washington state health officials over whose responsibility it was to test patients for the coronavirus. This “passing the buck” delay wasted valuable time.
- Lack of access to testing resources: It wasn’t until March 7th, nearly a month after the outbreak had first been noticed by staff, that the Life Care Center obtained enough testing kits to test all of its residents. The testing of residents and staff wasn’t complete until March 14th.
- A lack of protective gear.
The Nursing Home Crisis Spreads Nationwide
It gets worse. The CDC has concluded that Life Care Center staff members worked at other nursing homes during the same period, spreading COVID-19 to other nursing homes in the Seattle area.
By mid-March, 46 people, including 33 residents and 13 staff members, had tested positive for COVID-19 at the Chateau Nursing and Rehabilitation Center in DuPage County, Illinois, in the Chicago metro area.
The COVID-19 virus is now suspected (and in some cases confirmed) to have infected people in no less than 19 long-term care facilities in Florida. A Florida nursing home coronavirus epidemic is even more threatening than epidemics in other states, because Florida’s nursing home population exceeds that of any other state due to its popularity as a retirement destination.
Apparently, no similar disaster has affected New York nursing homes – yet. Even here, caution is in order because of COVID-19’s long incubation period – you can carry the virus for up to two weeks before you get sick.
If your loved one contracted coronavirus at a nursing home or an assisted living facility under circumstances that suggest negligence, he may be entitled to compensation for his suffering. If he died as a result, a wrongful death lawsuit may be in order.
Nursing Home Liability for the Actions of Its Staff
If your loved one contracted the COVID-19 coronavirus while resident in a nursing home, the tragedy may have been entirely avoidable. A nursing home employee who worked while sick, for example, can trigger liability against the nursing home, even if the employee did not inform the nursing home of his symptoms. This is possible under the legal doctrine of respondeat superior, which holds employers liable for wrongs committed by their employees even if the employer was not at fault.
If your loved one died from COVID-19, his personal injury claim did not die with him. Instead, it was transformed into a wrongful death claim in favor of the personal representative of your loved one’s probate estate. Any amount recovered is distributed to the real beneficiaries of a wrongful death claim – close family members. Tragically, no one can bring back your loved one. But that doesn’t mean you aren’t entitled to full compensation.
We’re on Your Side
It is not always obvious when you have a genuine nursing home abuse or wrongful death claim, because you might not know yet whether your loved one’s illness can be traced to the fault of the nursing home or one of its employees. We can help. Contact E. Stewart Jones Hacker Murphy as soon as you can, either online or by calling us directly, to set up a free consultation.
We maintain five offices in Albany, Colonie, Schenectady, Saratoga, and Troy.