By Y. Peter Kang

Law360 (March 20, 2020, 11:19 PM EDT) -- Nursing homes across the country have been instructed to ban all outside visitors to combat the spread of the new coronavirus among a vulnerable patient population, but attorneys say potential civil suits may put a spotlight on the underpaid and overworked staffers who care for them.

The Centers for Medicare & Medicaid Services issued guidance on March 13 asking nursing homes nationwide to bar all outside visitors such as family members, as well as non-essential health care staff. The guidance was issued amid a coronavirus outbreak at a nursing home in Washington state owned by Life Care Centers of America Inc. where more than 80 of 120 residents contracted the virus and 35 people have died as of Friday.

While attorneys specializing in nursing home negligence cases were initially pleased to find that similar outbreaks had not been seen at other nursing homes across the country, reports soon surfaced of COVID-19 outbreaks at nursing homes in Illinois, Florida and Louisiana.

Given the unprecedented nature of the virus, attorneys said it could be tough to prove foreseeability, or that a nursing home was aware of the dangers of the virus but failed to take the appropriate steps to prevent patient injuries.

"The coronavirus has taken everyone by surprise," said Tara R. Devine of Salvi Schostok & Pritchard PC in Illinois. "It's about when and what did they know or should have known and what precautions they took to prevent it from spreading."

But many elder care facilities are understaffed, with low-paid certified nursing assistants, or CNAs, carrying most of the load of patient care, according to Devine, who handles nursing home negligence and abuse cases. She said staff-to-patient ratios are monitored by CMS, and when the ratio is inadequate the issue can often help form the basis for a negligence suit.

"A lot of these CNAs who make up the majority of the staff at the nursing homes are part-time, not full-time, and do work at other facilities," she said. "Nursing homes sometimes have multiple facilities owned by the same owner, maybe 12 in a region, so the CNAs work at the same company technically."

Indeed, the Centers for Disease Control and Prevention's March 18 report on the Life Care outbreak stated that staff members who worked at multiple facilities contributed to the intra- and interfacility spread of the virus. At least 34 staff members have tested positive for the coronavirus, according to the CDC, and many were symptomatic but continued to treat patients.

"Working at multiple facilities increases the spread, but at the same time there are only so many certified nursing assistants out there, and hiring new people puts some patients at risk," Devine said. "That's a defense. With everything going on with the economy it doesn't make sense to hire a bunch of new CNAs. It's risky either way, hiring new employees who you don't know where they've been or having CNAs work at multiple facilities."

Hiring risks aside, CNAs are often asked to perform patient care duties beyond the scope of their expertise, according to Kenneth L. Connor, founding partner of personal injury plaintiffs' firm Connor & Connor LLC in South Carolina.

"Our experience has been that the root cause of the many problems of nursing homes is that you have too few workers with too little time," he said. "To compensate to just get things done, people skip steps and they don't take precautions that are necessary, and they aren't trained to do that which they should. What happens is things like infection control techniques are not followed as they should be."

Connor said a recurring problem in nursing homes across the country is short staffing as well as inadequate staffing.

"The motive is economic because staffing is the largest component of the nursing home budget," he said, explaining that higher-paid registered nurses who can perform patient assessments are often passed over for cheaper licensed practical nurses, or LPNs, who can't assess patients, along with CNAs at the bottom of the staffing pecking order.

"The problem is LPNs and CNAs don't have the training to do what RNs do, like picking up on signs and symptoms that the others aren't qualified to do," he said. "It's not only following the guidelines by isolating patients and disallowing visitors, it's about when patients show symptoms, is there a qualified nurse to treat patients in a timely fashion? Are appropriate infection control measures being taken?"

But health care defense attorney William J. Mundy of Burns White LLC in Pennsylvania downplayed the significance of nursing homes that employ higher proportions of CNAs and LPNs.

"Even if it's not a licensed RN, a CNA or LPN can certainly pick up on symptoms of individual patients and report to an RN who then assesses," Mundy said. "The idea that you don't have a third or fourth RN who didn't assess is not a realistic example of how things work."

Mundy said nursing homes will likely monitor staff for health issues but that the asymptomatic incubation period for the COVID-19 virus could prove challenging for elder care facilities.

"That's where you have real issues with staff," he said. "What happens if a staff member comes in, has no temperature, feels OK and performs their job but was exposed at the supermarket. How do you deal with that?"

Connor, who pointed out that Life Care in 2016 agreed to pay $145 million to the federal government to resolve a False Claims Act suit in connection with medically unnecessary rehab therapy services, said staffing issues are a systemic problem for nursing homes across the country and create a backdrop for catastrophe when something like COVID-19 emerges.

"You have a viral agent that is much more contagious than others, and when you put that added pressure on an understaffed and poorly trained system, and you have a cohort of patients at the highest risk, I fear that you're going to see an explosion of problems and infections," he said.

Melvin Wright of Colling Gilbert Wright & Carter, a Florida attorney who specializes in nursing home negligence, said it would behoove nursing homes to craft internal guidelines for their employees while the coronavirus crisis continues.

"If I was operating a nursing home I would want a checklist to show that policies were implemented by staff while this crisis is ongoing," he said. "If they don't have that checklist and someone gets coronavirus, that gives an attorney an argument that they didn't follow the Centers' guidelines. If it's not documented, the argument is that it's not been done."

--Editing by Brian Baresch and Emily Kokoll.

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