Elder Care Facilities and Nursing Homes Putting Patients at Risk - Long Before Coronavirus

Searcy Denney Scarola Barnhart & Shipley
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Searcy Denney Scarola Barnhart & ShipleyLong before Covid-19 ravaged nursing homes, the long-term care industry had an infection control problem.  On March 4, 2020 in response to the coronavirus, the Centers for Medicare & Medicaid Services (CMS) announced that it was postponing its routine inspections of nursing homes so it could focus solely on issues related to controlling the spread of Covid-19.  Days later, USA Today reported that in the last three years, 75% of nursing homes have been cited for failing to properly monitor and control infections. Fewer than 10 percent have full time infection control specialists.  Before the coronavirus, 380,000 people in long-term care facilities were dying from infections each year, according to the CDC. This lingering, unaddressed problem is now magnified in the COVID pandemic. But, we should not lose sight that it is the problems that existed long before we knew what the coronavirus was that place vulnerable nursing home residents in such a higher exposure to dangerous illness.

The Washington Post recently reported that of the over 650 nursing homes with cases of Covid-19, 40% had been cited more than once for infection-control issues.  Deficiencies included:

  • Failing to track residents with infections
  • Failing to ensure that staff members changed soiled gloves
  • Hand washing violations their
  • Using unsanitized equipment
  • Failing to properly sterilize equipment

In Florida last year a nurse failed to disinfect a blood glucose meter in a facility with 23 diabetic patients. High blood sugar levels in diabetics can challenge their immune systems, requiring higher vigilance in infection control procedures. Failing to sterilize a glucose monitor, even without the added threat of coronavirus, places patients at risk of death, loss of limb and illness.

Industry leaders argue that even the best infection control measures could not have prevented the onslaught of the coronavirus. However, inspections conducted by CMS the week of March 30th revealed that 1 in 3 nursing homes did not follow proper hand-washing guidelines and 1 in 4 four failed to demonstrate the proper use of personal protective equipment.  Nothing about the pandemic is preventing nursing homes from following these basic guidelines to stop the spread of infection, yet industry groups are citing the unprecedented nature of the pandemic to request blanket immunity from lawsuits.  Governor DeSantis is considering a request to extend sovereign immunity to healthcare providers, including nursing homes.  The Miami Herald has reported that leaders of at least 10 other states have signed or are considering similar measures.

As noted by the Miami Herald, some experts are sounding the alarm, arguing that extending blanket immunity to nursing homes could exacerbate an already dangerous situation. 

Long time elder care advocate, Brian Lee, had this to say:

“It’s jaw-dropping,” Lee said in the BuzzFeed article. “That they could, in the middle of a worldwide crisis, that they want to protect their interest, that they would make this request just floored me.” Brian Lee is Florida’s former chief long-term care ombudsman; a leader in overseeing nursing homes to “…improve the quality of life for all Florida long-term care residents by advocating for and protecting their health, safety, welfare and (elder) rights”.

Larry Polivka, former chair of a long-term care task force appointed by former Governor Jeb Bush, fears that restricting lawsuits will leave facilities isolated with little accountability when visits from governmental authorities and family members have essentially vanished.  Lawrence O. Gostin, director of the World Health Organization Collaborating Center on National & Global Health Law at Georgetown University cautions that any immunity should be narrowly tailored to address situations where medical resources are scarce and noted that “anything broader uses a public health emergency as an excuse for poor practice.”

In my over 25 years of fighting for the rights of nursing home patients and residents of other elder care facilities, I have learned a few terrible, frightening truths. The nursing home industry is largely populated by several large corporations with a primary interest being profit, even at the risk of patient safety. When profits are challenged, this is an industry that has shown no hesitation at slashing staff and creating situations where the patient population to staff ratio makes it impossible for residents to receive even the most basic care. This is also an industry that has become adept at hiding their assets and protecting the real owners through layers of corporate alter-egos. The nursing home industry also has a powerful lobby behind it that, like their principals, lobby legislators and governors in the best interests of the industry’s maximizing profit with no regard for patient and resident safety.

 The onslaught of coronavirus in nursing homes and elder care facilities has made an already serious threat, that much more serious and illustrated the industry’s standard response – ask legislators for high levels of protection while they deliver low levels of care.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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