COVID-19 in nursing homes raises short and long-term legal issues for medical malpractice

Medical malpractice lawyers share their concerns about what this crisis might mean for care facilities in Ontario

COVID-19 in nursing homes raises short and long-term legal issues for medical malpractice
Erik Joffe is a lawyer with Neinstein Personal Injury Lawyers.

The COVID-19 outbreak has hit long-term care facilities and retirement homes particularly hard. Horror stories of understaffed homes, shortages of personal protective equipment, and failures to implement proper social distancing procedures have appeared in Canadian newspapers. The tragedies are ongoing as these homes for our most vulnerable appear painfully exposed to COVID-19.

Medical malpractice lawyers see the crisis in long-term care facilities and retirement homes as a product of systemic issues in Ontario. Though Erik Joffe, a lawyer with Neinstein Personal Injury lawyers, says the system needs all the support it can get through this crisis, he has wider concerns around how well evidence will be recorded in this crisis. Melissa Miller, a partner at Howie Sacks and Henry LLP, worries that the crisis might lead to  wider negligence issues. They both ask what form the pursuit of justice will take once this crisis abates — and we begin to ask ourselves how we let the situation in these facilities get so dire?

“The situation is fairly dire for nursing homes and long-term care facilities throughout Ontario right now,” says Joffe, who is hosting a webinar on the issues facing long-term care facilities. “We’ve seen a number of issues coming to a head, in particular at the Pinecrest Nursing Home in Bobcaygeon where 29 residents and the spouse of a resident have died due to COVID-19.”

Joffe explained that long-term care facilities are tightly regulated in Ontario through the Long-Term Care Homes Act. That act lays out a ‘residents’ bill of rights,’ designed to protect residents from abuse and ensure access to clean facilities, adequate care, and a person’s material, social, and spiritual needs. It also strictly enumerates what tasks doctors, nurses, and personal support workers can perform at these facilities. Joffe says the pandemic situation has put the act in tension with the measures facilities need to take to prevent coronavirus outbreaks.

To address the tension, the Ontario government has made several emergency orders allowing for greater flexibility. For example, homes can emphasize care over sometimes time-consuming administrative tasks. Role distinctions have become more flexible, too, personal support workers are now allowed to perform tasks that might not normally be within their purview. While he accepts the system needs leeway and support during this crisis, Joffe says he’s worried that with less charting requirements and more flexibility, the evidentiary record of what’s happened in this crisis might be compromised.

Melissa Miller shares Joffe’s concern for the evidentiary record. Miller’s practice at Howie Sacks and Henry revolves around advocacy for retirement home and long-term care facility residents, says this crisis should prompt a system-wide inquiry. It’s her view that the pandemic has only exposed issues deep within Ontario’s care facility systems.

“For the rest of the population, something like this very unexpected, but in a nursing home it should not have been unexpected,” Miller says. “In my view, administrations should have been far more prepared for an outbreak of this nature than they were. It highlights the lack of resources that are being put into long-term care facilities to begin with. It's highlighting the existing understaffing issues. It's highlighting the existing lack of training in frontline workers.”

Miller says that the majority of long-term care facility staff are doing their best in a bad situation, but their hands are tied by systemic understaffing. She cited some examples of Ontario care facilities that failed to take even the bare minimum social distancing precautions until the end of March.

The crisis is already worsening the understaffing problems. Beyond the quarantines exposed staff will have to undertake, necessary restrictions are being placed on staff working at more than one care facility. While this may slow the rate of coronavirus spread, Miller says she expects an uptick in “regular” negligence incidents, where residents’ basic needs, like food and water, aren’t tended to.

Miller is already preparing to seek justice when the crisis abates. She says she hopes that the new public attention to long-term care facilities and retirement homes will prompt a societal re-examination of how these facilities are run in Ontario. She says she’s prepared, too, for these facilities to defend themselves by claiming their resources were too strained to provide adequate care.

“As a plaintiff's lawyer, I expect that kind of defence,” she says. “I don't think it's a just defence. I don't think it's a fair defence. I hope it's not one that succeeds in our courts. That will be a sad day, in my view, if it does. COVID-19 cannot be a scapegoat here. These problems existed before COVID-19.”

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