Nursing home coronavirus: Do families have legal recourse?

The combination of vulnerable populations at America's nursing homes with relatively tight living quarters has proved increasingly lethal during the COVID-19 pandemic, creating a legal and emotional minefield for families.

Not only are such facilities unprepared for a medical crisis unprecedented in modern history, lacking the staff or policies to cope, many have cut off visits from relatives in an attempt to keep residents from potentially fatal exposure.

As a result, families must make decisions about care with less information than they would like and, in some cases, without advance medical directives from the elderly or sick relatives in the homes.

While lawyers are available to help with living wills, families who have lost someone to COVID-19 in a nursing home and are seeking damages must generally prove in court that the death was the facility's fault, a standard that can be challenging under normal conditions and even more so when contact has been limited.

“This is uncharted territory because of the magnitude,” said Steven Levin, an Illinois elder law attorney and expert on nursing home neglect cases. “There's never been a similar catastrophe that affected older Americans in the history of this country, really.”

So far, more than 27,000 residents and staff have died from outbreaks of the virus at the nation’s nursing homes and long-term care facilities, according to an Associated Press tally based on state health departments and media reports. That is about a third of all 80,000 deaths in the U.S. that have been attributed to the virus.

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The issue has garnered widespread attention, including from Nils Lofgren, guitarist for Bruce Springsteen’s E Street Band, according to a report in The New York Times.

Lofgren, through attorneys, filed a lawsuit this week against the New Jersey long-term care facility where his mother-in-law has been living after a series of slip-ups and traumatic events.

“It’s a pledge they made, a sacred pledge, to take care of your father, your mother, your grandparents, and they put it in writing, by the way, and now they don’t want to have any responsibilities because, why, it’s too hard?” Lofgren told the Times. “We’re just horrified that people’s first reaction is, ‘Well we’re making a lot of money, but now let’s make sure we’re not liable for what we promised to do, in writing.'"

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A recent analysis published on Medium by The Foundation for Research on Equal Opportunity found that roughly 40 percent of COVID-19-related deaths were reported to have happened in nursing homes and other assisted-living facilities.

Levin, a founder and senior partner of Chicago-based firm Levin & Perconti and a founding member of the American Association for Justice Nursing Home Litigation Group, told FOX Business the implications of the virus on residents at long-term facilities are “unimaginably catastrophic.”

“It is in danger of reversing years and years and decades of advocacy about the quality of life that individuals are entitled to in long-term care facilities and about the quality of life any older person is entitled to,” he said.

Levin described how some facilities were “poorly staffed or undersupplied” and often lacked infection-control policies even before COVID-19 struck.

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“The coronavirus strikes and it finds its victims – elderly nursing home residents – in a situation where the facility is already broken. So now, in addition to everything else they have to do, they have to deal with the coronavirus and they don’t have the staff, the policies or the procedures in place to do that," he said.

"So, they're still not following infection-control proceedings, they don't know how to handle visitation by family members, they don't know how to screen their staff… and they don't know what to do with individuals who have the virus,” Levin explained. “We have a horrible situation.”

Carl Archer, a New Jersey attorney certified with the National Elder Law Foundation, emphasized that despite the compounding tragedies surrounding the nursing home COVID-19 crisis, legal recourse can be tricky.

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“At least in New Jersey, and given whatever efforts there are maybe to institute some of this nationwide, you would need to be able to prove that the health care provider was grossly negligent in the way that they were following the established protocols for personal protective equipment or for quarantining or for staffing or something of the like," Archer explained.

"There will be lawsuits that are brought over this, but it's likely that those lawsuits will consist of, 'What was your staffing like? Who was in, who was out, who was sick, who wasn't sick?" he said. "We're going to get into the little nitty-gritty things like this.”

Archer has practiced elder law for more than a decade and has been involved in caregiving advocacy for nearly 20 years. Over the course of just seven weeks, he has learned of at least 14 clients who died from COVID-19 while living in a nursing home or assisted living facility.

“Trying to figure out whether the facility is liable right now or the hospital or the health care provider, it's a little bit like trying to figure out who started the fire before you put the fire out,” he added. “We need to focus on putting the fire out first.”

Even for families who have escaped COVID-19 so far, being prepared for the worst is of the utmost importance, explained Stephanie Schneider, a board-certified elder law attorney with more than 29 years of experience.

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“[The] most important issues that I've been dealing with since early March are, number one, families want to know can they still get documents in place for their loved one," she said, referring to advance medical directives or living wills. "Is it too late? And if it's too late, what are the options?"

Such directives allow someone to designate a trusted person, also known as a surrogate, to make their medical decisions “if they become incapacitated, and they cannot communicate,” she said.

They also let people outline what treatments they would or wouldn't want if diagnosed with a terminal illness.

“Because of what our country has been experiencing, some medical professionals might feel that in the final phases of COVID-19, it does qualify as an end-stage condition or terminal illness,” she said.

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Schneider, who has been certified with the National Elder Law Foundation since 1996, stressed that even amid the lockdowns that many states are experiencing, there are options available for people to get their paperwork in order, and many attorneys are willing to help make it happen.

“This time really is an opportunity for consumers to deal with what many people put off, which is doing legal planning, and elder law attorneys across the United States are amazing,” she said. She encouraged people to look beyond fear to “get the documents in place, get the medical advance directives in place, so that anybody who needs to make decisions for somebody… they know what the person wanted. They don't have to guess.”

The Associated Press contributed to this report.