COVID-19 has wreaked havoc in nursing homes in many places. That is one of the more obvious tragedies of this pandemic. However, this recent article in the New York Times is more than just another story about the impact of this disease. What has happened at the state veterans’ homes in New Jersey is appalling. There has been a similar problem at a facility in Massachusetts.
These institutions are not part of the VA, although the VA provides money and support. The VA runs its own set of nursing homes, called Community Living Centers (CLC). So far, I have not seen reports of similar devastating outcomes at CLC, but it would not be surprising if there were some.
When looking at the spread of COVID in nursing homes and the resulting numerous deaths, it is easy to fall into one of two potential traps:
One can give them a pass. After all, it is an unprecedented situation. From the top of the government down low-level healthcare workers everyone has had to figure out what to do on the fly.
On the other hand, one can judge a facility with that perfect vision of hindsight. Looking back, one can see what could have been done and how such steps might have prevented many deaths.
Neither approach is appropriate. The problem with giving a pass to problem facilities or agencies is that some nursing homes are faring much better than others - often by a huge margin. One must look at that and ask why. It’s not likely because some had better knowledge than others. No one has had very good information at the outset. When you scrape everything away, I am certain we will find that the ones that fared better are those that operated better all along. Money has something to do with which facilities do better than others, but not everything. I would be willing to bet that the cost per patient in state veterans homes and CLCs is high and probably comparable to “good” private nursing homes. Of course, as with much governmental spending, that is not to say it was well spent, but underfunding is not the only or even the primary reason for outlier death tolls.
At the other end of the spectrum, one must have some charity when considering the conduct of healthcare providers during this crisis. As with any fast moving and novel situation, looking back it will be very easy to see the mistakes – from the very top levels down to the lowest. In many instances, the errors will be obvious. However, that was not the case when people were dealing with this in real time.
We’re lawyers and we look at things through that prism. Our inclination is to try to help patients and families when we can. That is how it should be. We have already been contacted about COVID cases. As with the stories from the New Jersey Soldiers Home, some of what we have heard is disturbing. The reality, however, there is probably not much we are going to be able to do for very many people regarding COVID cases. Judges and juries will likely have an even stronger inclination than they do now to give healthcare providers the benefit of the doubt. This means that our criteria for taking these matters will have to be more stringent than it is now.
The above may sound harsh, even cold. But it is just reality. We do no one any favors to take on cases where there is not a reasonable chance of getting a recovery for the client. Regardless of the legal options or ramifications, what has happened in these veterans’ nursing homes is beyond heartbreaking. I just wish something could be done that would help these people and their families right now.
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