Will Nursing Home Lawsuits Over COVID-19 Handling Spark Positive Changes to How We Care For Our Elderly?

nursing homes

A resident waves from the Herron seniors residence in Dorval near Montreal. Photo: The Canadian Press/Ryan Remiorz

When the COVID-19 pandemic started spreading through nursing homes and seniors residences, accounting for more than 80 per cent of the deaths in Canada, it was only a matter of time before the lawsuits started pouring in.

So says Darryl Singer, head of commercial and civil litigation at Diamond and Diamond personal injury law firm and lead counsel on a $50 million class action suit against nursing-home operator Revera, a Mississauga-based company that houses the elderly in 500 locations in Canada and the U.S.

“When the pandemic first hit I remember saying to one of my colleagues, ‘the nursing homes are going to be screwed,’” Singer says bluntly.

The Revera lawsuit is one of several that are being issued against long-term care home operators in Canada. In Quebec, the family of a woman who died in the outbreak has filed a class-action application against the government-run CHSLD Sainte-Dorothée. In Toronto, a law firm has served the provincial government with notice of a class action on behalf of all Ontarians in long-term care homes.

According to some legal experts, this is just the beginning. We’ll see more long-term care lawsuits to follow, predicts Lisa Feldstein, a Toronto-based health lawyer whose firm focuses on family caregivers.

“And there might be more class actions outside of long-term care,” says Feldstein, suggesting that other facilities that densely house residents that weren’t able to control the spread may face similar legal battles.

The Diamond and Diamond lawsuit was filed on behalf of two men who lost their mothers after the elderly women contracted coronavirus while residing in a Revera-owned facility.

Singer, whose firm has successfully sued nursing homes in the past, noted this particular class action isn’t against the individual Revera homes or the people who work in them. Instead, it’s being filed against the head corporation that owns close to 100 in Ontario.

“Revera was negligent in how it operated these homes for years and years,” he says. “That negligence and lack of attention to those homes left it such that the homes were rife for this [COVID-19] spread.”

Responding to the lawsuit, Revera’s senior Manager of Corporate Affairs Larry Roberts issued a statement saying, “Right now, we are focusing our efforts on caring for our residents and protecting our residents and employees from the pandemic,” he said in a statement. “We offer our most sincere condolences to the families and friends of the people we have lost to COVID-19.”

Pandemic caught everyone by surprise

The long-term care industry will no doubt argue that the COVID-19 outbreak caught each and every nursing home by complete surprise, and that they had little time to prepare for such a terrible pandemic. And it will likely be hard to argue with that defence.

In a letter to residents and families, Revera’s Chief Medical Officer Dr. Rhonda Collins outlined that, while the pandemic caught them off guard, the company responded quickly to put infection-control policies in place to limit its spread.

“We are in a crisis unlike anything we have seen before, and we in seniors’ care have had to adapt quickly and continuously based on emerging knowledge and public health guidance. Our care and operations leadership teams meet constantly to stay abreast of the latest information on COVID-19 and to provide guidance to employees at our long term care homes and retirement residences. We examine every outbreak situation carefully, looking to learn from the experience and prevent further spread.”

Singer, however, says this doesn’t absolve the operator from blame. “They don’t train properly. They don’t have enough staff, they don’t take precautions, they don’t plan. Had they been better prepared to respond, they would have been able to mitigate the number of deaths.”

Failing to put adequate preparations in place when the pandemic hit – including isolating infected patients and providing their staff with sufficient personal protective equipment – exacerbated the situation, says Singer. “Revera, like a lot of corporations, put the pursuit of profit so far ahead of any concern about the people on whom they’re making that profit,” he says. “They failed abysmally and that’s why they’ve got to write a cheque.”

Defining proper “standard of care”

Feldstein, who declined to speak about a specific class action, suggested that there are two legal points that will ultimately decide the success or failure of the lawsuits against long-term care homes. She says lawyers for the families will have to prove the homes failed “their responsibility to care for and protect the residents.”

She feels that proving to the courts that these homes didn’t meet a “standard of care” will be difficult. “The challenging part of a class action lawsuit will be determining what is expected the standard of care,” she says. “Because the standard of care outside a pandemic may end up looking different than what’s expected inside a pandemic. There isn’t a guidebook to determine what was the standard of care expected by these homes.”

In the U.S., a country that’s far more litigious than Canada, many states are passing laws that offered nursing homes some protection against both civil and legal prosecution for how they handled the pandemic. However, neither Feldstein nor Singer feel that the provinces are likely to follow suit here, nor do they feel that similar shield laws will stand up in court.

Will lawsuits improve long-term care?

In fact, Feldstein feels that public litigation, while time-consuming and expensive, might serve as a catalyst to transform the long-term care industry, a development many feel is long overdue.

“Class actions can be useful in changing the way industries operate,” she says, pointing to how big settlements against automakers forced the industry to improve their safety standards.

But not everyone is convinced that forcing nursing homes to “write a cheque” is going to modify how the entire long-term care industry operates, says Marissa Lennox, chief policy officer at CARP, a non-profit affiliate of ZoomerMedia.

“Civil class action lawsuits will not change a system,” she says. “They may provide some comfort to the families in the form of a financial award. But they will likely take years to conclude and, in the meantime, will not fix the systemic challenges in long-term care.”

Instead, it’s up to provincial politicians – not the courts – to fix this badly broken system to ensure it does a better job in protecting the frail elderly the next time a similar pandemic occurs.

“Real change has to come through legislation,” she says.

RELATED

With Half of COVID-19 Deaths Linked to Long-Term Care Homes, Are Canadians Losing Faith in the System?

As COVID-19 Invades Nursing Homes, CARP Advises Canadians to Care for Loved Ones at Home