As COVID-19 ravaged nursing homes last year, with Pennsylvania facilities among the hardest hit in the nation, the industry braced for an onslaught of lawsuits blaming operators for thousands of wrongful deaths.
That hasn’t happened — at least not yet.
Plaintiff lawyers and other experts say the complex nature of the pandemic, which forced health experts to change guidance frequently, means there’s a high bar to proving in court that a nursing home is at fault for a death from COVID-19 and should be held liable.
Still, that doesn’t mean that all nursing homes can rest easy.
Swartz Culleton PC, a Bucks County law firm, recently filed four separate suits alleging wrongful deaths against Broomall Rehabilitation & Nursing Center. In Delaware County Common Pleas Court, the firm alleges that the facility was negligent because it failed to maintain effective controls against COVID-19 infections and make sure staff properly used personal protective gear.
What put the cases over the top for Christopher J. Culleton was a citation issued in June of last year by the Pennsylvania Department of Health, saying, among the criticism, that some Broomall staff had failed to wear masks properly. What’s more, Culleton said, the facility also had higher-than-usual rates of infection and death. A fifth case against Broomall is in the works, he said.
“I’m not seeing a lot of infection control citations or deficiencies based on COVID during the pandemic,” Culleton said last week. “Every time I get called for a case, that’s the first thing I’ll do. I’ll look to see if they’ve been cited, and if they haven’t, it’s probably not a case.”
Other plaintiff lawyers in the Philadelphia region told similar stories of receiving many calls about potential lawsuits but usually concluding that they couldn’t take them on. Typically, these lawyers pay the costs of bringing such cases and get paid only if they win.
“Almost everybody knows somebody or knows of somebody who caught COVID through no fault of their own. It killed hundreds of thousands of people. It didn’t discriminate and was a very difficult virus to combat. We’re still battling it now,” said Robert L. Sachs Jr., a plaintiff’s lawyer at Shrager & Sachs in Center City. “To lay the blame for that at the feet of a nursing home is quite difficult.”
Sachs and other lawyers hold those views even though virus deaths hit Pennsylvania nursing homes particularly hard. The state, with about 700 nursing homes, had the highest coronavirus death rate among large states. The state’s 10,070 COVID-19 deaths in nursing homes through July 11 works out to a ratio of 157 per 1,000 residents, according to federal data. New Jersey’s death rate was 148 per 1,000 residents.
So far, only about a dozen wrongful death and COVID-related malpractice suits have been filed in Southeastern Pennsylvania, according to Hunton Andrews Kurth’s COVID-19 Complaint Tracker and Inquirer research. There are fewer cases in New Jersey, where nursing homes have immunity under state law.
Despite the sobering death toll in nursing homes, hurdles to a successful coronavirus-related medical malpractice lawsuit are many.
First, the nursing homes have had success in moving lawsuits from state court to federal court, where they can claim immunity under the federal Public Readiness and Emergency Preparedness Act. This 2005 measure was designed to allow health-care professionals to take reasonable countermeasures during emergencies without fear of being held liable.
Most federal courts have cautioned that the so-called PREP Act does not apply in the cases of nursing homes clearly failing to adopt measures to protect residents. The Third Circuit Court of Appeals in Philadelphia is weighing whether these cases belong in federal or state court.
Even in state court, the cases are not easy.
Plaintiffs first have to establish what standard care should have been during the pandemic and show how the nursing home violated it. That’s difficult to do because guidance from state and federal public health officials changed frequently. Moreover, supply shortages sometimes barred even competent staffs from adopting protective measures.
The next challenge is: “How do you prove causation, that it was from the neglect of the nursing home?” said Samuel D. Hodge Jr., a professor at Temple University who teaches legal studies in business.
Hodge also said it might be harder to win over juries filled with people who now consider medical professionals heroes. “We never had that before,” he said.
William J. Mundy, a lawyer at Burns White LLC who represents nursing homes, said notices about potential lawsuits are coming less frequently.
“There’s a general realization that these cases are much more difficult, they’re going to be much more time consuming, they’re going to be much more expensive, and there may be nothing at the end of the day,” Mundy said.
The legal calculus could be different for deaths during the coronavirus second wave, from October to January, Mundy said. Supplies of protective equipment had caught up by then, though worker supply was still a problem.
Martin S. Kardon, a Philadelphia plaintiff’s lawyer, said he has 14 potential cases at a single Lancaster County facility, the Garden at Stevens. All the deaths occurred in November and December at the facility after no cases in previous months, Kardon said. He said that deaths came well after facilities had time to figure out how to respond to the virus.
Broomall Rehab had problems early on. In April 2020, the Pennsylvania National Guard sent 18 military nurses and medics to help alleviate a staffing shortage at the facility as COVID-19 cases mounted. The facility also drew attention to administering an anti-malaria medication to residents without telling family members.
A spokesperson for Broomall Rehab, which is part of Atlanta-based SavaSeniorCare, said Thursday the company had not been served the lawsuits, which were filed July 23. The company would not comment further.