The Los Angeles Times reported in November that a bereaved woman, whose mother had died when a COVID-19 outbreak hit the woman’s Los Angeles nursing home, was embroiled in a lawsuit where the care provider is asserting that federal law related to COVID-19 provides them a legal shield.
In this case, the woman believed the outbreak was caused by admitting a new resident, who had flown in from New York and was allowed to enter the facility untested and without any quarantine. According to the Times, the woman and her relatives decided to sue the provider, Silverado Senior Living, who claimed they are shielded from liability by a federal law passed during the pandemic. Silverado claims it is protected by the Public Readiness and Emergency Preparedness Act. A federal judge decided in September that the allegations against Silverado didn’t fall under the PREP Act, so the case was sent back to state court.
Also in California, we learned that the owner of an unlicensed California elder-care facility has been sentenced to four years in prison for her role in the neglect and death of an 83-year-old veteran. The facility allegedly lied to families not only about its standard and quality of care but also about the legitimacy of the facility itself. Its state licensing was revoked in 2017 due to the standard of care, yet the facility continued to take in new residents, resulting in the veteran’s 2018 death.
More than anything, the COVID-19 pandemic has both amplified any problem in the nursing home system while unmasking any thin veil that covered problems that were already there.
A September Marketwatch report discussed the staffing shortage in nursing homes. Each time there was a resurgence of COVID-19. This remarkably visceral passage from the Marketwatch piece drives home the reality for many families:
“The facility has a two-star, ‘below average’ staffing rating from the Centers for Medicare and Medicaid Services, the federal agency that regulates nursing homes. When she recently raised questions about whether her husband is bathed twice a week as scheduled, she says, a staff member checked the records and couldn’t find any documentation of when he’d last had a shower. She noticed scabs on his back, she says, and later learned that he’d had scabies, an itchy skin condition caused by mites. And ‘he’s lost so much weight, we don’t know if he’s getting the food in his mouth,’ she says. With pandemic visitation restrictions, her communication with her husband is often limited to a couple of 10-minute video calls per week, but ‘someone has to watch him’ to make sure he eats.”
Ken Elwood, a New Jersey lawyer specializing in nursing home abuse, referenced a New York Times report from December in which it was revealed that many of the worst offenses that nursing homes commit are hidden from public view. Elwood suggests families need to be particularly diligent in choosing a nursing home and to be always aware of what’s going on in the facility:
“First, do some research. Take it upon yourself to look at the facility, do plenty of research on the Internet, read reviews, and speak to as many people as possible about their current and past experience with the facility.”
Because information is so hard to gather no matter how diligent a family is, Elwood always counsels families who feel that there might be any type of emerging abuse to never discount what you see, hear, and feel.
“In these cases, the best you can do for your family members is excellent due diligence. The sense that you get from speaking with the right people whose decisions and supervision will affect your loved one is the most important thing.”
Finally, Elwood counsels people not to follow the advice of the defendant in the California nursing home case. You can, even in a global pandemic, successfully sue a nursing home where the standard of care they have provided is less than they legally owe your family.
