Austin C. Monroe and Randall C. Monroe: Nursing Home Defense – Anticipation of COVID-19 Litigation

August, 2020

On March 9, 2020, Illinois Governor J.B. Pritzker declared all counties in Illinois disaster areas in response to the outbreak of COVID-19. On May 1, 2020, Governor Pritzker issued Executive Order 2020-35 in further response to this outbreak, which deemed certain healthcare facilities, including those licensed by the Illinois Department of Public Health under the Nursing Home Care Act, as essential human services. On April 1, 2020, Governor Pritzker issued Executive Order 2020-19, which grants immunity for certain healthcare providers from civil liability for injury or death if it occurred during the disaster proclamation period, unless it is shown that the facility, and/or its employees, were grossly negligently or displayed willful misconduct. Order 2020-19 will remain in effect through the duration of the Governor’s disaster proclamation.

While there is no exact definition of gross negligence, it can be described as misconduct that exceeds ordinary negligence, which is defined as failing to do what a reasonably careful person, or facility, would do under similar circumstances.1 Willful misconduct, typically referred to by Illinois courts as willful and wanton conduct, has been described as a purposeful, utter indifference, or conscious disregard for a person’s safety.2

As you may be able to tell, there are no firm definitions for the types of actions that can expose a skilled nursing facility to liability consistent with Governor Pritzker’s order. Therefore, it will be left to the court, and potentially a jury, to determine if the actions of a facility constitute gross negligence or willful misconduct. Further complicating matters, the Illinois appellate courts and Illinois Supreme Court have not yet been tasked with evaluating and determining the validity, scope and enforceability of the Governor’s order. The courts have not ruled on the constitutionality of the order, or if the immunity is limited to claims made by only residents, or may be extended to employees, independent contractors, service providers and visitors.

Even if the immunity is found to be valid, that does not preclude a plaintiff from filing a lawsuit against a skilled nursing facility regarding a COVID-19 related injury. At the pleading stage initiating the lawsuit, the plaintiff will only need to allege gross negligence or willful misconduct to overcome the immunity. Once that is done, discovery will be needed to establish that the facility did not act in a grossly negligent or willful manner. This would include the production of documents, answering of written discovery, and depositions, which will likely include depositions of expert witnesses. If the plaintiff fails to establish gross negligence or willful misconduct, summary judgment can be sought. If the plaintiff is able to, at a minimum, raise a question of fact regarding whether such conduct occurred, the matter would proceed to a jury to make this determination.

Therefore, it is important to take steps now to prepare for the litigation that is inevitably forthcoming to any facility with residents who contracted COVID-19, as immunity is not absolute and does not prevent the initiation of litigation by a resident.

What nursing home facilities should already be doing: infection prevention.

From a patient care standpoint, it is important to look at the promulgated guidelines for direction in providing appropriate care for the residents at a skilled nursing facility. There have been no guidelines enacted into law specifically related to COVID-19 precautions; however, several organizations have published guidance that should be reviewed and considered. The Center for Disease Control and Prevention (CDC) has set forth a number of guidelines regarding training, reporting, resident education, visitor policies, source control measures, testing of residents and staff, and supplies.3 The Center for Medicare and Medicare Services (CMS) has similarly enacted guidelines, which include screening, testing, containment and staffing strategies.4

A facility that has not already reviewed their policies in these categories, as well as general infection control policies, and evaluated the sufficiency of their policies in light of these recommendations should do so immediately. Even though these guidelines are not mandatory, the actions suggested will be strong evidence to refute allegations of gross negligence or willful misconduct. While evidence in the form of testimony is useful, individual’s memories are not perfect, and the testimony of defendant’s employees can be perceived as biased. The best evidence for establishing prudence in addressing the COVID-19 pandemic will be documentation, and therefore it is important to document precautions enacted, precautions as they are carried out, training conducted, etc., and to ensure this evidence is maintained for use in defending any allegations that may arise.

What nursing home facilities should do now: preserve evidence.

Maintaining evidence is not only essential in preparing to defend potential claims related to COVID-19, but also in preventing the imposition of various sanctions in litigation that can be detrimental to defending a case. If a plaintiff is able to show that the skilled nursing facility failed to retain, or destroyed, evidence that it had a duty to preserve, sanctions can be issued by the court.5 Also, the plaintiff may be able to include in their complaint an additional count under a theory of negligence for spoliation of evidence.6 The duty to retain evidence arises when a reasonable person in the skilled nursing facility’s position should have “foreseen that the evidence was material to a potential civil action.”7 If a piece of evidence is not retained, it would ultimately be left to a judge, or potentially a jury, to decide whether the facility should have preserved, or taken reasonable steps in an effort to preserve, the evidence.

If it is determined that evidence was destroyed that should have been preserved, sanctions can be requested from the court. These sanctions are within the judge’s discretion, but can include the defendant being barred from raising a defense related to those documents, witnesses being barred, monetary sanctions, or even judgment against the party regarding claims that are based upon the missing evidence.8

An additional sanction within the discretion of the court is the issuance of a special jury instruction, should the matter proceed through discovery, trial, and be presented to a jury. This instruction tells the jury that they can infer that the evidence, had it been produced, would have been adverse to the party that failed to preserve and produce the evidence.9 Ultimately, the sanction that is issued by the court is proportional to the reason for the lack of production, and efforts to protect evidence would be considered and should limit the severity of the sanction if evidence is lost.10

Currently, plaintiffs’ attorneys across the state are seeking clients who allegedly contracted COVID-19 while residing at a skilling nursing facility. Those same counsel are also issuing preservation of evidence notices to the skilled nursing facilities asking that evidence be retained regarding not only their COVID-19 clients, but also a vast array of other documents discussed below. It is important that the skilled nursing facility, upon receipt of such a letter, notify their liability insurance provider and also seek the assistance of counsel in addressing the attorney’s request.

Any patient care records, including both hard copy and electronic records, should be retained, which is likely already a standard procedure at skilled nursing facilities. Other documents that have been identified in requests to preserve evidence, and should be retained, include documentation regarding staffing, in-service education, billing, floor plans, building’s census, and personnel files of staff, among many other things.

At the time of receiving a letter requesting the preservation of evidence, the scope of the request is not limited to evidence that is ultimately admissible at trial. The scope of evidence that should be preserved includes that which would be produced during discovery, which is anything relevant to the subject matter involved in the action.11 Because of this broad approach to discoverable documents, the facility should be over-inclusive in the preservation of evidence. A judge will ultimately decide what is, or is not, discoverable. The circumstance should be avoided where the court rules a document needs to be produced, but the evidence has been destroyed despite the opportunity to preserve the evidence had reasonable efforts been made.

A second category of documents that have been requested are not patient specific, but rather focus on the facility’s efforts to address the COVID-19 outbreak. These items have included documentation memorializing actions taken by the facility, such as training, policies and procedures, supplies, signage and educational materials, and contact tracing. Communications have been requested, not only those relating the resident with a potential claim, but communications with all residents, their families, visitors, and any other outside entities regarding COVID-19.

Retention policies for the above-referenced items can vary from facility to facility, and can differ within the facility depending on the category of documents. Policies regarding the retention of documents should be revisited, and if not unduly burdensome, expanded to retain all documents from January 1, 2020 to the present.

Letters requesting the preservation of evidence may also ask that additional safeguards be put in to place to protect the requested documentation. It is important to note that a letter requesting the preservation of evidence does not legally require a skilled nursing facility to do anything, as there is typically no lawsuit filed at the time the letter is issued. However, failure to preserve the evidence could subject the facility to the sanctions down the road, as discussed previously.

Any additional safeguards requested by the resident’s attorney for preserving the evidence, such as printing a hard copy or pulling hard drives/tapes to create a separate back-up of the documents, need to be considered in light of the risk of the evidence being lost if the additional steps are not taken, the financial cost of taking such steps, and the intrusiveness on the facility, such as down time for accessing records necessary for current resident care.

A notification for the retention of evidence is something that should be addressed with urgency by a skilled nursing facility with the assistance of counsel. This article should not be considered legal advice, and does not take the place speaking with an attorney, as every circumstance is unique, letters for preservation of evidence can very, and each facility is different. That being said, the attorneys at Brenner, Monroe, Scott & Anderson, Ltd. are experienced in nursing home defense litigation throughout Northern Illinois and are available to assist with preservation of evidence letters, COVID-19 related claims, or any other nursing home care litigation.

1 See Illinois Pattern Jury Instruction 10.01.
2 E.g. Larsen v. Provena Hosp., 2015 IL App (4th) 140255, ¶ 18, 27 N.E.3d 1033, 1038 (4th Dist. 2015)
3 “Nursing Home & Long-Term Care Facilities,” (Updated June 25, 2020).
4 “COVID-19 Long-Term Care Facility Guidance,” (April 2, 2020).
5 Boyd v. Travelers Ins. Co., 166 Ill.2d 188, 652 N.E.2d 267 (1995).
6 Martin v. Keeley & Sons, Inc., 2012 IL 113270, ¶ 26, 979 N.E.2d 22, 27 (2012).
7 Id. At 195.
8 Illinois Supreme Court Rule 219(c) (2002).
9 Illinois Pattern Jury Instruction 5.01.
10 See Coupon Redemption, Inc. v. Ramadan, 164 Ill. App. 3d 749, 518 N.E.2d 285 (1st Dist. 1987).
11 Illinois Supreme Court Rule 201(b)(1) (2020).

*Austin C. Monroe and Randall C. Monroe are partners in the Chicago law firm of Brenner, Monroe, Scott & Anderson, Ltd. Their practice is concentrated in the defense of healthcare malpractice, including the defense of nursing homes. For more information, visit the firm’s website,