Laws protecting nursing homes from COVID-related liability needn’t stop suits against Annandale Healthcare Center

Chris Duncan holds a portrait of his mother at an event at the Washington monument in September honoring the lives lost to COVID-19 and protesting the lack of a national policy to contain the pandemic. Constance Duncan contracted COVID at the Annandale Healthcare Center.

Legislation approved by the Virginia General Assembly during the special session and signed into law by Gov. Ralph Northam in October gives assisted living facilities and other healthcare providers immunity for wrongful death lawsuits as a result of the COVID-19 pandemic. 

That law doesn’t affect the Annandale Healthcare Center (AHC), however, as that facility is already protected from liability under another state law. 

Several Annandale families are considering legal against AHC, as they blame the facility’s failure to follow health protocols for a relative’s unnecessary death from COVID. 

Constance Duncan is one of 59 AHC residents who died during the COVID pandemic, and her son, Chris Duncan, is considering a lawsuit. He is currently attempting to get the facility to hand over his mother’s medical records so he can have them reviewed by a medical expert. (There are 2,100 pages and AHC is charging him 25 cents a page.)  

Duncan cites multiple failures by AHC, not all related to COVID: His mother was diagnosed as having end-stage renal disease but never got referred to dialysis, they failed to contact him about her condition, and they refused to send her to the hospital even though she had a fever and needed oxygen. Duncan eventually called an ambulance himself. 

He’s most frustrated by their “lack of caring.” His goal “is to make sure the people there are safe.” 

At the urging of Virginia Del. Kaye Kory (D-Annandale), the state’s Long-Term Care Ombudsman asked its Northern Virginia office to investigate the deficiencies at the AHC described in previous Annandale Blog articles. 

The new law on immunity (House Bill 5059 and Senate Bill 5082) is aimed at protecting assisted living facilities, hospices, adult daycare centers, and private providers from wrongful death suits in situations where the facility could not provide sufficient care due to the pandemic – because they couldn’t get enough PPE, ventilators, or staffing, for example – and as a result, a patient contracted COVID-19. 

AHC, however, is a nursing home, and as such, it is covered by a previously enacted law (Sections 8.01-225.01 and 8.01-225.02 of the Code of Virginia) that grants immunity to hospitals and other healthcare providers during emergencies. 

Related story: Rep. Connolly calls for government to address deficiencies at COVID-ridden Annandale Healthcare Center

Del. Rodney Willet (D-Henrico County) sponsored HB 5059 to expand immunity for assisted living facilities and other providers because “when COVID happened, they were on the front line, and didn’t have the same protections” as previously covered healthcare providers. 

HB 5059 “only provides immunity from liability when a lack of resources results in lesser care than normally provided,” Willett said.

“There’s still a path to suing these facilities if there’s a medical malpractice unrelated to a lack of resources,” he said. For example, if a patient develops ulcers because staff failed to turn them over regularly, that doesn’t involve the pandemic or PPE.  

Sen. Dave Marsden (D-Annandale), who sponsored SB 5082, said, if a facility “had done everything in the world to get PPE and can’t get it, they can’t be held grossly negligent” if patients die from COVID. 

That law will make it harder for families to sue, said attorney Joseph Musso, the head of elder abuse at Ashcraft & Gerel LLP. 

The previous law, which protects nursing homes like AHC from wrongful death suits, is broader, and therefore, more problematic for family members considering lawsuits, Musso said.

Related story: Annandale Healthcare Center failed to tell patients’ families about its huge COVID outbreak 

Plaintiffs will have to show that a facility acted with “willful misconduct” and with “utter disregard for any prudence,” he said. “It’s not gross negligence if there is even the slightest degree of care.” 

Musso has talked to about 30 or 40 people about COVID-related lawsuits in the past few months, but is now only pursuing a handful of them because it is so much more difficult to prove gross negligence. “A lot of lawyers won’t take COVID death cases,” he said. 

However, he noted, “you could pursue gross negligence” in a case against AHC because “they were completely indifferent to residents.” 

Surveys by the Centers for Medicare and Medicaid Services, show the facility violated numerous health protocols – such as staff not using PPE or practicing social distancing – that most likely contributed to its COVID outbreak. “The deficiencies are really concerning,” he said.

“You can’t just bring a lawsuit because there is an outbreak,” Musso said. A facility that tried every avenue to order PPE and couldn’t get it probably has a valid defense. “But if they don’t know how to use it or train staff, I don’t think they should get a free walk.” 

Related story: Annandale Healthcare Center hasn’t had hot water for a week

CommuniCare, the company that owns and operates AHC, has been sanctioned several times this year for COVID-related problems at nursing homes in other states. Most recently, two CommuniCare facilities in Indiana were fined by the state’s Occupational Safety and Health Administration.  

“This is our most vulnerable population,” Marsden said. That’s why nursing home patients and staff will be among the first group to get priority for a COVID vaccine in Virginia. 

“If we had national leadership on this, we would be in a different situation today,” he said.