Articles Posted in Infections in Nursing Homes

Over a year into the COVID-19 pandemic, some states are proposing—and passing—reforms to address the issues prevalent in Maryland nursing homes and those across the country. New York state recently passed a law set to be signed into law that would require for-profit nursing homes to spend at least 70% of revenue on direct patient care. In addition, any profits over 5% would be given to the state. The law would direct 40% of a nursing home’s budget to be spent on staff who work directly with residents. A law professor commented that a state immunity law that was recently repealed had allowed homes to engage in practices that created “unreasonable risk to residents.” One family member whose husband, a Navy veteran, was a resident in a nursing home said that he had not been given a shower in weeks.

Maryland lawmakers have considered a reform bill that would impose additional requirements on out-of-state nursing home purchasers, along with other reform bills. The bill would require state inspections after owners from outside of Maryland purchase nursing homes in the state. The bill would require unannounced inspections three and six months after the purchases are made.

Nursing home residents in Maryland continue to be at risk for abuse and neglect by staff members, medical providers, and other residents. Abuse may be physical, sexual, emotional, or financial. Signs of abuse can vary but could include unsanitary living conditions, broken bones, unexplained injuries, a history of repeated injuries, fear of certain people, bedsores, missing property, and missing funds. Neglect can be more difficult to detect in some cases, but it could include a lack of mobility, poor personal hygiene, and psychological distress.

New York state recently passed a law that revokes the immunity of nursing homes from liability for decisions concerning the COVID-19 pandemic, according to a recent article. Over 15,000 residents and staff died in nursing homes, assisted living facilities, and other long-term care facilities in that state. New York had originally passed a bill granting immunity to nursing homes during the pandemic, preventing residents and their families from suing nursing homes in court for an injury or death based on negligence. Meanwhile, Maryland has considered increasing immunity for COVID-related injuries.

In January of this year, the state Senate introduced a bill that would expand immunity from claims based on COVID-19. As introduced, it would protect anyone who acts in compliance with certain regulations, statutes, and orders (including Maryland nursing homes and long-term care facilities). However, the bill would not protect people who act with gross negligence or intentional wrongdoing. The Senate bill remains pending, and a similar bill was introduced in the House. Proponents’ of New York’s law argued that the immunity protected nursing homes that made decisions even in bad faith.

Under Md. Code Ann. Pub. Safety section 14-3A-06, a healthcare provider is shielded from liability if the healthcare provider acts in good faith while there is a “catastrophic health emergency” proclamation. This law was in place before the COVID-19 pandemic. Even if Maryland’s proposed bill becomes law, facilities must follow state and federal guidelines to receive immunity. As of March 1, 2021, under a Maryland directive, licensed nursing homes must comply with the guidance on COVID-19 issued by the U.S. Centers for Disease Control and Prevention, U.S. Centers for Medicare and Medicaid Services, and the Maryland Department of Health. If a resident or staff member tests positive for COVID-19, all residents who have not tested positive for COVID-19 within the previous 90 days must be tested. Maryland has had more than 30,000 COVID-19 cases in nursing homes and over 3,500 deaths in nursing homes, group homes, and assisted living facilities.

Maryland residents who have loved ones in nursing homes have likely been particularly worried about their loved ones’ health, as well as nursing home abuse and neglect, during the COVID-19 pandemic. Due to the large numbers of people living in one area and the relative vulnerability of those living in nursing homes, it is perhaps not a surprise that the facilities have been hit particularly hard by COVID-19. Outbreaks have spread through nursing homes at alarming rates, and there are concerns that they have potentially been fueled by negligent staffing, medical neglect, and lack of proper sanitation procedures. Additionally, there have been high death rates of individuals living in nursing homes, with recent news revealing that those rates may have been undercounted.

Last month, New York State Attorney General Letitia James released a new report based on an investigation into nursing home policies that caused abuse and neglect and threatened the lives of residents and staff alike. One of the key findings in this report was that the number of nursing home deaths tied to COVID-19 has been undercounted by Governor Andrew Cuomo’s administration by as much as fifty percent.

Part of the problem that seems related to the fact that the state only counted residents who died on nursing home property, rather than including those who were transferred to a hospital. But the new report indicates that many deaths occurred in hospitals once residents caught COVID-19 in their nursing homes and were then transferred. For example, one facility reported five confirmed and six presumed COVID-19 deaths to the state’s Department of Health. But the same facility reported a total of 27 COVID-19 deaths at the facility itself and another 13 deaths in hospitals. Discrepancies like this were found in multiple nursing homes.

After the COVID-19 pandemic hit, many families were prevented from visiting their loved ones living in Maryland nursing homes. Visits often serve as a time when families can spend time with their loved ones, and also observe their loved one’s condition in-person. Some advocates claim that there has been a surge in reports of neglect among nursing home residents. Federal data reflects that almost 30 percent of nursing homes report staff shortages now across the United States. Nineteen percent of nursing homes in Maryland report a shortage of nurses and/or aides.

Federal regulations established through the creation of Medicare and Medicaid allow federal oversight of many nursing homes. Even before the pandemic, in surveys conducted from January 2019 through March 2020, 39% of facilities had incidents with suspected or alleged reports of abuse, neglect, or misappropriation of property. Yet, the Centers for Medicare & Medicaid Services (CMS) actually suspended survey activities last March except in some circumstances. More recent guidance allows for survey activities to resume if the state has progressed in its reopening plan or at the state’s discretion. Nursing homes have a responsibility to care for their residents, keep residents safe from harm, and prevent abuse and neglect. Claims can be filed against facilities in cases where nursing homes or staff members have abused or neglected a resident.

Local Group Calls for Reform of Nursing Homes

The Centers for Disease Control (CDC) recently revised its COVID-19 guidelines to state that the coronavirus can be spread through aerosols, raising questions about the practices of Maryland nursing homes. It was previously known that the virus could be spread through respiratory droplets, such as when an infected person coughs, talks, and breathes. But experts now say that the virus is also spread through aerosols, which can remain in the air for hours and travel more than six feet. Experts still believe that the virus is mainly spread through respiratory droplets, but believe that airborne transmission does occur. Dr. Anthony Fauci stated that he was pretty confident that there was some airborne transmission of COVID-19.

Aerosols are microscopic droplets or particles and remain suspended in the air for some time, as opposed to respiratory droplets, which drop to the ground. Aerosols can accumulate in a confined space like a poorly ventilated room. Air purifiers and open windows can help to mitigate aerosol transmission by increasing ventilation within a confined space.

Some researchers have raised this issue in regards to nursing homes. Some research reported on one case of a COVID-19 outbreak in a nursing home with inadequate ventilation. One ward in a nursing home had a rate of 81% positive COVID-19 cases among residents, as opposed to no cases among the other six wards in the nursing home. Based on the low rate of the virus in the community, fast rate of transmission within the ward, the documented poor ventilation, and despite the use of surgical masks, the data suggested that the outbreak was caused by aerosol transmission due to inadequate ventilation.

It’s no secret that the COVID-19 pandemic has had an especially large impact on nursing homes, where tens of thousands of residents and staff members have gotten sick and even died. Because nursing homes combine communal living and vulnerable individuals, and because they often have high rates of abuse and neglect, the COVID-19 pandemic has hit those living in a nursing home particularly hard. In some homes, hundreds of residents have caught COVID-19, with dozens dying. The pandemic is thus raising concerns for Maryland families who have placed family members in nursing homes; many are fearful that nursing home abuse and neglect could be fatal for their loved ones.

In some cases, the situation has gotten so bad that the FBI has been sent to raid nursing homes with a high number of COVID-19 cases. According to a recent news report, two Pennsylvania nursing homes were raided and searched just last month by investigators from the FBI, as well as the state attorney general’s office and other agencies. This followed concerning reports of deeply troubling conditions and practices, including a lack of trained nurses, filthy living conditions, and lax sanitation protocols. Data from the State Department of Health shows that 447 residents and staff members tested positive for the disease as of early September, and 73 people had died.

Tragically, this example is just one of many nursing homes across the country, failing to keep their residents safe during a deadly pandemic. But it is important to know that many of the issues leading to the spread of disease were present even before COVID-19 began spreading through the United States. Nursing home abuse and neglect is not new, but COVID-19 is showing just how widespread and deadly it can be. While there have been reports of unsanitary and even filthy living conditions at Maryland nursing homes before, the lack of sanitation is especially apparent when a contagious disease is spreading through the facility. The same is true for medical neglect: a long-standing issue at many facilities, but even more deadly during the pandemic. Even just carelessness on the part of the staff—not wearing a mask at all times, failing to wash their hands regularly—now has an incredibly large impact on the safety and well being of nursing home residents, many of whom require constant care and are unable to move out and care for themselves.

Nursing homes continue to be hit hard by the coronavirus. Across the U.S., over 40 percent of deaths in the country are linked to nursing homes. In Maryland nursing homes, the numbers are even higher. As of September 25, there have been 2,146 deaths across the state in nursing homes, group homes, and assisted living facilities, which accounts for 57% of the total deaths in the state. Maryland has seen 753 resident deaths and 7 staff deaths during the week of September 23.

According to a recent news report, one nursing home in Sykesville, Maryland is facing hundreds of dollars in fines after the state found it failed to isolate residents and notify staff during an outbreak. For example, the facility moved an exposed resident to a room with a negative resident, who both later tested positive. Some newly admitted residents also were not isolated, despite having sufficient rooms to do so. Maryland nursing home residents may be able to take action against the facility based on its failure to protect and properly care for residents.

Other states have explored solutions to mitigate the spread of COVID-19 in long-term care facilities. As one news source reported, in New Mexico, the state worked with a healthcare operator to set up a nursing home that it dedicated to treating long-term care patients infected with the coronavirus. It was set up to reduce the spread of COVID-19 in long-term care facilities in the state. Deaths in nursing homes in New Mexico make up 34% of the total deaths in the state.

Nursing home negligence and abuse is a huge problem in Maryland and across the entire country. Even before the COVID-19 pandemic hit earlier this year, this blog reported on Maryland nursing homes’ negligence and the devastating effects it can have on residents and their families. However, the COVID-19 pandemic has made matters even worse in many nursing homes. A recent news report documented the harsh realities of COVID-19 within nursing homes and how a widespread lack of safety and sanitation protocols has become potentially deadly.

The report discusses one nursing home that received a citation in October of 2019 for failing to “provide and implement an infection prevention and control program.” The report that accompanied the citation found that staff members would engage in shocking behavior—one, for example, used a soiled towel to wipe a resident’s buttocks and then failed to wash their hands before going back to work. In the aftermath of this report, however, residents’ relatives said that the home did not take steps to change their behavior. One woman discusses the care her 93-year-old mother received, saying that she could not rely on the nursing home staff to take care of her or keep her healthy, and witnessed her being injured or roughhoused. Once, she had to clean fecal matter from her mother’s fingernails or dispose of adult diapers left on her bed. Tragically, the woman’s mother passed away in early April from a COVID-19 outbreak that the nursing home failed to control.

The concerns discussed in this home are not unique. In fact, nursing homes across the nation and in Maryland have very similar problems, with substandard living conditions for residents and a lack of proper sanitation. This caused problems before the COVID-19 pandemic, but has worsened since the pandemic spread across the United States in March of this year, causing outbreaks and deaths among nursing home staff and residents.

In the event of the death of a resident at a Maryland nursing home, the resident’s family may be able to recover compensation through a Maryland wrongful death lawsuit.  However, determining fault in a nursing home abuse or neglect case is not always straightforward, and the assistance of a skilled personal injury lawyer can be an invaluable asset to families who are unfamiliar with the process.

Maryland’s Wrongful Death Act allows family members to file a civil claim against parties at fault for the decedent’s untimely death. A wrongful death claim is intended to compensate family members that have suffered a loss due to the loss of the decedent. It also permits the decedent’s family to hold wrongful actors responsible in the same way that the decedent could have if the decedent had lived.

A wrongful death claim is often filed by a spouse, parent, or child of the decedent. Such plaintiffs are considered “primary” plaintiffs under the Act. Only a primary plaintiff can file a wrongful death claim, if one exists. If the decedent does not have a living spouse, parent, or child, the claim can be filed by a “secondary” plaintiff. A secondary plaintiff is another individual who was related to the decedent by blood or by marriage and who was substantially dependent upon the decedent.

Recently, an industry news source recorded a fascinating podcast including an interview with a former assistant U.S. attorney who discussed legal issues that could arise for nursing homes from the COVID-19 pandemic. The podcast discusses how nursing home abuse and neglect cases may be affected by the virus. The information is very important for residents of Maryland nursing homes or those who have loved ones in these facilities.

The podcast discussed the various immunity laws passed for health care providers as a result of the pandemic in states across the country. These laws are not brand new—some states have long had immunity provisions that kick in automatically whenever a state of emergency is declared. Most of the current immunity provisions in effect now during the COVID-19 pandemic change the level of culpability that facilities can be held to in nursing home abuse or neglect cases that have to do with the disease.

Typically, someone bringing a nursing home abuse or neglect case has to prove that the actions of the facility amounted to negligence and contributed to resulting injuries, illness, or death. However, the immunity provisions typically increase the standards. According to the podcast speaker, the provisions basically say that nursing home facilities and the individuals working within them will no longer be responsible for negligent behavior. Instead, they can only be held liable at a higher standard, such as gross negligence or reckless disregard. This makes it much harder for victims of nursing home abuse or neglect to hold the facilities responsible, because it’s a higher bar of proof to reach. In other words, it might not be enough to show that the nursing home or employees acted negligently or carelessly and caused the spread of COVID-19 or even a COVID-related death. Instead, potential plaintiffs might have to prove that the nursing home was extremely careless, perhaps even maliciously or willingly, which is much harder to prove as a matter of law.

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