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FMG Law Blog Line

Georgia’s first taste of COVID-19 lawsuits in long term care facilities

Posted on: April 27th, 2020

By: Shaun Daugherty

It has been highly publicized that long-term care facilities were devastated by the effects of COVID-19 on its residents and the filing of negligence suits against long-term care facilities in its wake was inevitable. Four such cases were filed in Fulton State Court on April 23, 2020. All of the cases involve the same facility, the same plaintiffs’ firm, and similar fact patterns and allegations. 

Each complaint alleges that the facility negligently failed to follow precautionary restrictions that were put in place at the facility starting on March 11, 2020. Coincidentally, that is the same date that the WHO declared a global pandemic and two days before President Trump declared a national emergency. In fact, if the allegations in the complaints are accurate, then these restrictions were implemented by the facility ten days before the CDC issued guidance to nursing homes and long-term care facilities. 

However, the claims appear to be centered on whether the restrictions were followed rather than their timely implementation. Plaintiffs claim that despite the imposition of the restrictions, employees failed to wear personal protective equipment and asymptomatic staff that were exposed to COVID-19 were permitted to continue to work. In each of these four cases, it is alleged that the residents tested positive for COVID-19 and died as a result. 

These appear to be the first cases in Georgia of their kind. However, earlier this month, a negligence and fraud case was filed in Washington state related to the well-publicized issues that occurred at the Life Care Center at Kirkland and the subsequent death of one of the residents. These Georgia cases will likely be the first to test Governor Kemp’s Executive Order that extended civil liability immunity. There are also a host of additional defenses that will likely be asserted related to timeliness, reasonableness, and, significantly, proximate cause. There is a recognized difference in dying with a diagnosis of COVID-19 and dying because of the disease.  Residents in these facilities were likely already suffering from a number of co-morbidities that placed them in the high-risk category to begin with.  Expert testimony in the many fields of medicine will likely become involved on both sides. 

There are also a host of additional defenses that will likely be asserted related to timeliness, reasonableness, and, significantly, proximate cause. There is a recognized difference in dying with a diagnosis of COVID-19 and dying because of the disease.  Residents in these facilities were likely already suffering from a number of co-morbidities that placed them in the high-risk category to begin with.  Expert testimony in the many fields of medicine will likely become involved on both sides. 

These cases will be watched closely by the legal community and will likely be the measuring sticks on causes of action and defenses for the expected onslaught of new claims that are on the way. 

If you have any questions or would like more information, please contact Shaun Daugherty at [email protected].

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