The Washington Post reported on July 7, 2020, that the Southeastern Veterans Center in Pennsylvania routinely administered hydroxychloroquine to patients, even those patients who had not been tested for covid-19. This is an off-label use of a medication that has not yet shown to be effective against Covid-19. Last month the President had indicated that he was taking the medication prophylactically, even though he had not tested positive for the virus.
The County Coroner examining patients who had expired at the facility explained that at least 11 of the residents who died had received Hydroxycholoroquine and had not been tested for Covid-19. The administration of this drug is at odds with the FDA emergency use authorization issued in late March, which stressed that the drugs should only be administered during clinical trials or in hospitals providing careful heart monitoring.
This treatment was given over the objection of some nurses and in many cases, the drugs administration was not disclosed to families. “Typically, nursing homes are required to notify families of any change in patient’s drug regimen,” explains nursing home attorney Jeffrey Downey. That would be especially true with an experimental drug that has potentially deadly side effects. There have been numerous anecdotal reports of nursing homes not providing families with important information about infection rates and failures in care, that have contributed to abnormally high infection rates in skilled care facilities.
As noted in the Washington Post article regarding the Southeastern Veteran Center, nurse aides had watched feverish patients who likely had covid-19 being placed in the same rooms as patients who were well. The facility was also allowing the staff to work without face coverings weeks into the crisis.
Studies of prior virus contaminations have consistently shown that that infection rates in skilled nursing facilities are typically much higher than the standard population, with one study before Covid-19 showing a 28% exposure rate of influenza A, despite prior influenza vaccinations.[1] The Washington Post has created a data base tracking nursing facilities with Covid-19 cases.[2] The CDC conducted a study of an early, highly-publicized infection in a SNF operated in Washington State by Life Care Centers of America, which operates some 28 facilities nationwide, which revealed that the infection spread to 81 residents, 34 staff members with 23 deaths.[3] Based on the total number of residents, 121, the infection rate was 67%.
Even before this pandemic, nursing homes and hospitals were required to put in place practices to limit the infectious spread of viruses, which is nothing new to the industry. Under federal regulations which set minimum standards of care for Long Term Care facilities, they “must establish and maintain an infection control program designed to provide a safe, sanitary and comfortable environment and to help prevent the development and transmission of disease and infection.” 42 C.F.R. §65. The provider must establish an infection control program which investigates, controls and prevents infections in the facility. Id. Such a program may include isolation of residents. “The facility must prohibit an employee with communicable disease or infected skin lesions from direct contact with residents or their food, if direct contact will transmit the disease.” Id (emphasis added).
“Facilities that were late in the game in isolating patients or providing protective gear for their patients will have significantly higher infections rates,” explains Downey. “These facilities should not be awarded legal immunity for their neglect of this highly vulnerable segment of our society.”
In Virginia, Annandale Healthcare center had 156 cases and 51 deaths, as reported by the Virginia Department of Health. The CDC is also providing data on nursing home infections in skilled care facilities. (Link -https://data.cms.gov/stories/s/COVID-19-Nursing-Home-Data/bkwz-xpvg/). In Manassas, Birmingham Green had reported 20 deaths from Covid 19, with 41 confirmed cases. Leewood Healthcare center in Annandale has reported 17 deaths, although the facility reported only nine total cases among patients. The Virginian, a Fairfax nursing facility, had reported 32 Covid cases and 10 deaths.
In Maryland the government had provided data on facilities and infection rates broken down by geographic area. The highest infection rates are in Baltimore and Montgomery County. There have been nearly 200 cases reported at FutureCare in Baltimore. There are more than 90 cases amount residents and their staff at Pleasant View Nursing Home in Mounty Airy, Carroll County.
Nationwide, nursing homes have reported over 95,000 confirmed cases and another 58,000 of suspected cases and nearly 32,000 deaths. In summary, nursing homes have accounted for nearly 1/3 of all covid-19 deaths.
“As Department of Health investigations continue and as additional information becomes known about the troubled facilities, we will have a clearer picture of potential legal liability against these facilities,” explains Downey. Both Maryland and Virginia have enacted immunity statutes that provide some qualified protections for nursing facilities that will have to be overcome, if wrongful death cases are to be pursued against the worst offenders.
There have been anecdotal reports of inaccurate death certifications, effectively underreporting Covid-19 deaths in nursing facilities and elsewhere. In cases reviewed by attorneys, some doctors have been reporting the cause of death as “suspected Covid-19 exposure.” This creates an issue as to whether a proper determination was even made in the first instance.
If your loved one expired in a nursing home after testing positive for Covid-19, you need to make sure that the death certificate accurately reflects the cause of death. Where the patient died of respiratory complications and tested positive for Covid-19, the death certificate should reflect Covid-19 as the cause of death. It is important that the doctor completing the death certificate understand that someone is looking over his or her shoulder during this process.
For additional information, or a free consultation, contact the Law Office of Jeffrey J. Downey. Representing clients in Virginia, Maryland, N.Y. and the District of Columbia.
[1] Infectious Disease Outbreaks in Nursing Homes, an Unappreciated hazard for Frail Elderly Persons https://academic.oup.com/cid/article/36/7/870/318878. The frequency and severity of infectious disease outbreaks in nursing homes often go unrecognized and unappreciated, even though these facilities provide an ideal environment for acquisition and spread of infection: susceptible residents who share sources of air, food, water, and health care in a crowded institutional setting
[2] https://wpinvestigative.github.io/nursing_homes_covid19/index.html
[3] https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e1.htm
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