This OnPoint focuses on three litigation defense basics:
- transparency and willingness to explain challenges and share responsibility with external stakeholders reduces litigation risk;
- complete and detailed documentation – including in areas not expressly subject to record-keeping regulatory requirements – is essential for demonstrating your good conduct; and
- consideration of and compliance with public health guidance is essential, but should not be treated as a one-size-fits-all roadmap.
The COVID-19 pandemic finds nursing homes and other senior living facilities confronting unprecedented operational challenges and risks. The highly vulnerable population served, combined with the near impossibility of both caring for residents and practicing extreme social distancing, has made them easy targets for the spread of contagion. The plaintiffs’ bar hears the media drumbeat of a “nursing home crisis” and is already dusting off its playbook from prior litigations. But owners, operators, and administrators can proactively reduce their litigation risk, applying lessons learned from other crises to help navigate these unprecedented times.
Timely, Repeated, Transparent, and Understandable Communications Reduce Litigation Risk
During times of crisis, businesses of all kinds tend to hunker down and look inward, with single-minded focus on the problem at hand. This is usually a mistake. Timely, repeated, transparent, and understandable communication with external constituents, in this case including residents, families, staff, service providers, other neighboring providers and care networks, and state and local officials is not only likely to lead to better problem solving, but it also helps reduce litigation risk.
Residents and family members can and should be made aware of and invested fully in their shared duty to understand and comply with evolving policies and procedures. They also can play a critical role in ensuring their loved ones understand new information affecting their care and are compliant with restrictions. They can be engaged to formalize advanced directives regarding how care should be handled if someone does become infected. They also can share in helping reduce the risk of collateral morbidity and mortality from the loneliness and depression of prolonged isolation. This kind of partnering not only is likely to improve health outcomes, it also increases personal engagement with the daily challenges confronting facilities and spreads ownership of difficult decisions, which also reduces litigation risk.
Similarly, sharing with relevant authorities real-time information regarding operational challenges, whether or not required by applicable regulations, helps make them partners in problem solving. If the allegations are apt to be that everyone was “asleep at the switch” or “overwhelmed” and thus unable to provide the required care, evidence that oversight authorities knew what was happening and were actively engaged in each step of the process of developing solutions provides a powerful response.
Good Documentation Helps Tell A Good Conduct Story
Accurate and real-time record keeping is essential to preserving institutional memory of the what’s, when’s, why’s, and how’s of all the decisions made in this constantly changing environment. Looking back with 20/20 hindsight at an institution’s conduct during this crisis, plaintiffs’ lawyers will be quick to gloss over or completely ignore the many daily, if not hourly, challenges. Or they will question the credibility of your explanations. Individual recollections after-the-fact will never fully and fairly recreate the moment. More likely, if the effort wasn’t written down, plaintiffs’ lawyers will act as if it did not happen.
Also essential will be written tracking of how facilities shared newly emerging information and knowledge, and trained on and effectively reinforced compliance with policies and procedures. You will want to show that what you knew of your facility’s risks and the precautions you were trying to communicate were actually reaching the intended audiences and actually having the desired impact. Paper notices, voice messages, emails, webpages, in-house TV networks, and online informational videos and other tools may all be a part of a thoughtful operational and communication plan and one that helps demonstrate the best efforts your team, in fact, made. In short, meticulous documentation will be essential to proving that the institution acted reasonably and in good faith to protect the health and safety of your community.
Avoid Treating Public Health Guidance As a One-Size-Fits-All Response Plan
Federal COVID-19-related guidance promulgated by CDC, particularly in the earliest days of the pandemic, has provided much needed practical advice that facilities can use as a framework for understanding and implementing urgently needed infection control measures. But compliance with CDC’s guidance is not apt to serve as a complete response to litigation. CDC’s guidance is written to apply broadly, without consideration of the specific circumstances affecting any particular community or facility. On its face, the language is mostly suggestive rather than directive, and consistent with the idea that there is not a single one-size-fits-all solution. Facilities are well-advised, therefore, to view CDC guidance (as well as recommendations from state and local authorities) conservatively, as important to informing but not necessarily setting a limit on their own best efforts to prevent the spread of disease.
Relatedly, while efforts have succeeded in a handful of states to enact legislation granting immunity for those responding to the COVID-19 pandemic, caution is advisable when projecting the ultimate application to nursing homes and other senior living facilities. This is particularly so, as shifting political winds also seem to be triggering governmental investigations of nursing home practices. No matter how broadly written some state immunity acts may be, plaintiffs’ lawyers are likely to argue that the protection should not extend to operational and management decisions, which they will claim allowed disease transmission. Or, they will try to fit their cases into legislative exceptions, such as by alleging knowing, reckless or willful misconduct and will seek expensive and time-consuming discovery to support these claims. At a minimum, facilities will need to prepare themselves for this scenario by doing what they are mission-driven to do: make the best scientifically and medically-based decisions they can, which fit their particular population, community, and circumstances.