Healthcare professional in a long-term care facility wearing a mask

The Liability of Long-Term Care Facilities Resulting from COVID-19

Jul 13 2020

As COVID-19 swept across the world, it had devastating effects on daily life. One of the most impacted demographics, sadly, is the elderly residing in long-term care facilities. As a result, these facilities have gotten a lot of heat, scrutiny, and lawsuits due to the serious illness and death that impacted their elderly residents during the pandemic.

But how does COVID-19 truly impact the liabilities of a long-term care facility? Most important of all, what can be done from here? This article covers these main points and more.

Let’s get started.

Staff comforting an elderly resident in a long-term care facility

What Counts as a Long-Term Care Facility?

When it comes to senior living options, there are two kinds of long-term care: custodial care and skilled care. Custodial care refers to the non-medical care that is recommended by an authorized medical worker, which aims to help seniors with daily basic care such as eating and bathing. Meanwhile, skilled care refers to any medically necessary care that can only be provided by or under the supervision of a licensed medical worker, which can include physical therapy, occupational therapy, IV medication administration, catheter care, wound care, and other forms of treatment.

Long-term care facilities can be loosely defined as any facility where a group of residents are provided with the custodial and/or skilled care that they need. There are two main types of long-term care facilities for seniors assisted living facilities and nursing homes.

Assisted Living Facilities

These are facilities that provide supportive housing and care to seniors who need some assistance with daily tasks. Though these facilities focus on custodial care, residents can still have access to visiting or on-staff health care professionals such as nurses, physicians, physical therapists, and occupational therapists.

Nursing Homes

A nursing home can be described as a place for elderly people who don’t necessarily need to be in a hospital but cannot be cared for at home. Most of these facilities focus on both custodial care and skilled care. Most nursing homes, therefore, need to have a staff of nursing aides/assistants and skilled nurses who are there 24 hours a day.

What Makes Long-Term Care Facilities Vulnerable to the Impact of COVID-19?

There are three main reasons why long-term care facilities are vulnerable to the impact of COVID-19:

1. The Older Adult Demographic

The risk of contracting the virus and experiencing severe illness from COVID-19 increases with age. Severe illness from the COVID-19 virus means that the patient will require hospitalization or intensive care and may even lead to death. Older adults are proven to have the highest risk due mainly to a weakened immune system.

2. Comorbidity

Comorbidity also plays a role in increasing the susceptibility of long-term care facilities to COVID-19. Comorbidity is defined as the existence of more than one disorder or disease at the same time. Commonly, residents in long-term care facilities are not simply older adults, but typically older adults with existing health problems which makes the impact of COVID-19 a lot more severe.

3. Not A Closed System

Understandably, long-term care facilities cannot be closed off from the rest of the world. The staff typically do not live in the facility and supplies need to be received from the outside. Occasionally, these facilities also cater to visitors. Anything from the outside world can carry the virus because the COVID-19 virus can survive on inanimate surfaces for up to a few days.

Though stricter measures may be in place right now, the gap of time before such measures were made is enough for the virus to make a deadly impact. And presently, human error, negligence, and failure of personal protective equipment can still give the virus the leeway it needs to get into the facility.

For all of these reasons above, long-term care facilities are labelled as “ground zero” for COVID-19.

Elderly resident of long-term care facility utilizing video call to keep in touch with loved ones

So Far, What is the Scope of COVID-19’s Impact on Canada’s Long-Term Care Facilities?

Long-term care facilities worldwide have had staggering death tolls related to COVID-19. Unfortunately, Canada has one of the highest numbers of deaths in long-term care facilities related to the virus, accounting for 82% of Canada’s COVID-19 deaths.

The outbreaks in long-term care facilities also revealed an underlying problem that made matters worse: the shortage of staff. At the height of the pandemic, the Canadian army had to be called in to care for seniors at long-term care facilities in Quebec and Ontario.

How Does COVID-19 Affect the Liabilities of Long-Term Care Facilities in Canada?

Long-term care facilities have always been the subject of scrutiny and blame when unforeseen and unfortunate disasters strike and cause harm to elderly residents. And even during ordinary days, long-term care facilities are prone to receiving lawsuits if an elderly resident becomes ill, injured, or deceased due to human error, negligence, misconduct, and the like.

Due to the amount of harm that COVID-19 can inflict on the elderly populace and the increased exposure of long-term care facility staff to the virus, does this mean that the liabilities of a long-term care facility are affected by the COVID-19 virus? The short answer is yes—and here’s how:

1. General Liability

General liability is the business’s legal responsibility for injury, property damage, or financial loss caused to a third-party (e.g. a customer). Long-term care facilities can be liable if a third-party (e.g. a visitor) can prove that they have contracted the virus due to negligence of the long-term care facility.

An example could be if the long-term care facility does not promptly take measures for a resident who has COVID-19 and they still allowed visitors to come within close proximity, thereby causing a visitor to contract the virus. If this negligence can be proven, it can be a viable general liability lawsuit.

2. Professional Liability

Professional liability is the legal obligations arising from a professional’s errors, negligent acts, or omission. In the context of long-term care facilities, this can specifically include medical errors, negligence, and non-delivery of care that was promised. If any of this can be proven to be the cause of a resident contracting or dying from COVID-19, the long-term care facility can be held liable for that.

3. Worker’s Compensation Liability

It’s important to note that it’s not just the elderly patients who are at risk. The staff of a long-term care facility may also face added exposure to the virus because of their job. If an employee is proven to have contracted the virus on the job, the long-term care facility may be liable to give worker’s compensation which includes medical expenses and missed wages during recovery.

What is the Next Step for Long-Term Care Facilities?

This pandemic not only challenges long-term care facilities to refine their practices and safety measures. Long-term care facilities also need to re-examine what insurance policies they have in place to make sure that they are protected from financial and legal risks.

Having general liability insurance, professional liability insurance, and worker’s compensation liability insurance may not be enough. Some policies are not updated for COVID-19 and may even have exclusions that will mean the facility is unprotected from any possible liabilities connected to COVID-19.

KASE Insurance is one of the top providers of business insurance in Canada. We’ve served countless businesses by providing them with a tailor-fit insurance policy for their needs. When it comes to dealing with COVID-19, we make sure to be transparent about our policies and update them as needed while we work closely and honestly with our clients.

If you have any questions for us, feel free to reach out. Contact us today or get a quick quote to get started!

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