Few Nursing Homes Have Avoided COVID-19, But Many Are Taking Improper Advantage of the Immunities Afforded Them

By Jeffrey J. Downey, Attorney

Recent reports reflect that only 53 nursing homes in the entire United States have managed not to contract a case of Covid-19 in their facility. The health watchdog documented several of the implications of Covid-19 on nursing homes, including information on reported Covid-19 cases. Health watchdog reported that 516 facilities reported at least one case of covid-19 within their nursing homes.

Health watchdog also dives into data reported to the chief inspector, explaining that the chief inspector was notified of 1,895 deaths in nursing homes in 2021. Nursing homes were not the only facilities that were severely impacted by Covid-19. Centers for people with a disability were hit hard by covid-19 as well. According to the report, 5,864 cases of Covid-19 cases were reported last year, and 94 unexpected deaths.

We do not have access to hard data on Covid-19 cases in assisted living facilities, explains nursing home attorney Jeffrey Downey.   Assisted living facilities are not managed at the federal level and reporting varies from state to state.

Unfortunately, most states, including Virginia and Maryland have Covid-19 immunity statutes explains Downey.  These statutes make it very difficult to sue a nursing home that negligently caused a patient to develop Covid.   We are seeing cases now where Covid-19 is showing up on death certificates, even where the patients had recovered from the condition and died of unrelated neglect, like pressure wounds or falls, explains Downey.   Nursing homes realize that if they put Covid-19 as a contributing cause of death, they can cloud the causation picture and prevent legitimate malpractice cases from going forward.

Our long-term care system is the weak link in our healthcare chain, explains Downey, who handles elder neglect cases in Virginia, Maryland, and Washington D.C.  These facilities are often sued for neglect or wrongful death, and they sometimes engage in fraudulent conduct to cover their bottom line.  Inaccurate death certification is a problem that has been addressed in other publications.

Pressure wounds are a significant problem in our long-term care system.

Inaccurate reporting or staging of pressure wounds is also a common problem in the United States.  Health care providers stage facility acquired pressure wounds (decubitus ulcers) from stage I (redness on the skin) to stage IV (deep wound, into the muscle) depending on their severity. We have seen cases where the hospital discharges a patient claiming they have only a stage II pressure wound and when the patient is admitted into the nursing home, the pressure wound has magically become a stage IV. Since many of the patients are demented and do not document or photograph the wound, this gamesmanship makes it more difficult to hold healthcare providers accountable for their malpractice.

There are regulatory standards on how such wounds should be measured and documented in the chart, including size, depth, and wound characteristics (odor, drainage, appearance). Many times, these pressure wound standards are not followed,  as the facility wants to cloak their negligence with unclear descriptions, which can also give a false impression that the patient’s wound is not a serious problem.  Such conduct, simply puts the patient at greater risk, explains Downey.

If you have a question about any of the above issues, contact the Law Office of Jeffrey J. Downey for more information.

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