Preparing Skilled Care Facilities for COVID-19 Litigation


While much of the United States is celebrating the lifting of many COVID-19 pandemic restrictions, and returning to a greater sense of normalcy, for nursing homes and long term care facilities, the prospect of COVID-related litigation still looms.   According to the U.S. Government Accountability Office (the “GOA”), as of January, 2021, 94% of U.S. nursing homes experienced more than one outbreak of COVID-19 during the period of May, 2020, through January, 2021, with 85% of facilities having outbreaks that lasted more five (5) or more weeks.  Of 13,380 nursing homes reviewed by the GOA, only sixty-four (64) had no COVID-19 outbreaks during that eight-month period.

The impact of these outbreaks is staggering in terms of loss of life, not to mention the potential long-term consequence for residents and staff who were impacted.  According to the AARP Public Policy Institute, as of June, 2021, more than 184,000 residents and staff of nursing homes and other long-term care facilities have died as a result of COVID-19.  Put another way, The COVID Tracking Project at The Atlantic Magazine estimates that, as of March, 2021, 8% of people who live in U.S. long-term care facilities have died of COVID-19.  For nursing homes, the figure is nearly 1 in 10 residents.

In Illinois, many nursing homes and other facilities impacted by COVID-19 have hoped that Governor Pritzker’s Executive Order will afford them some degree of immunity relating to these outbreaks.  Recently, however, Illinois Federal Courts have ruled in favor of Plaintiffs and denied Motions to Dismiss filed by an Illinois nursing home that claimed immunity under Governor Pritzker’s Order.  To learn more about these decisions, the Court’s rationale, and the defense arguments still available to Illinois nursing homes, please click here to read Sean Hurley’s piece discussing these decisions in greater detail.

For facilities anticipating litigation, Mollie Werwas recently published her article, entitled “A Gathering Storm?: Defending Nursing Homes Against COVID-19 Lawsuits,” in DRI’s For the Defense Magazine.  This article addresses the practical steps nursing homes and other long-term care facilities can take to prepare their defense against COVID-19 cases.  A copy of Mollie’s article is available here.

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