COVID-19 Lawsuit Against La Jolla Facility Could Signal More Fights to Come

The daughters of a 73-year-old man who died after contracting COVID-19 in a skilled nursing facility have sued the home, in what could herald a surge of litigation against the industry.

The lawsuit, among the earliest of its kind in California and the first to be reported on in San Diego, accuses The Springs at Pacific Regent and its owner of negligence in responding to the novel coronavirus. It comes as industry  groups push Gov. Gavin Newsom to sign an executive order limiting legal liability during the pandemic, which has ravaged senior facilities

In February, The Springs admitted Lenard Hugle Jr., who had recently suffered a stroke, according to the civil action filed in San Diego Superior Court on May 29. His roommate contracted the virus on March 17, and Hugle became infected in early April.

“He never saw his family again before passing away on April 18,” states the complaint, which names the Ensign Group, a for-profit nursing home chain that owns The Springs, as among the defendants.

The administrator of the 59-bed facility did not return requests for comment, nor did attorneys representing Hugles’ two daughters.

The lawsuit claims The Springs didn’t isolate Hugle from “infected residents and/or staff,” and that the facility failed to: adequately test residents and staff; provide enough personal protective equipment; ; adequately train staff in COVID-19 precautions; limit  visits and warn families and their residents about the virus. Understaffing is also alleged.

The legal action, which centers on the facility’s COVID-19 actions but also alleges other care failures, seeks monetary damages to be determined at trial.

The Springs reported 68 resident cases since the pandemic began, including 21 current cases, according to a California Department of Public Health database. At the facility there have been fewer than 11 resident deaths linked to COVID-19. The state list does not get more specific upon 10 or fewer deaths in a senior home.

Paul Greenwood, the former lead prosecutor of felony elder abuse cases at the San Diego district attorney’s office who is not involved in the case, said he does not foresee it hinging on the prevalence of COVID-19 in the facility. It would be key, he said, to establish that the facility ignored protocols and regulations, such as those governing infection control.

Such evidence may only emerge after several rounds of the discovery phase of litigation, he added.

“The key for me is to show evidence of what a facility failed to do once it was on notice about the lethality of the virus and to establish a chain of causation after notice was established,” said Greenwood, who is now a consultant.

Philip Lindsley, a founding attorney at the San Diego Elder Law Center, expressed a similar view. Zooming out, Lindsley said, in skilled nursing facilities like The Springs at Pacific Regent the bar for proving negligence is typically lower than in assisted living facilities, which are non-medical and lightly regulated.

“Skilled nursing facilities are medical,” Lindsley said. “They have very strict protocols.”

Media scrutiny of The Springs preceded the lawsuit. Two months ago, one resident of the facility told NBC 7 that all residents – whether positive for COVID-19 or not – share common spaces within the facility, like the kitchen, lobby and patio.

In addition, The Springs’ history before COVID-19 could come into play, Lindsley and Greenwood said.

The Springs has four stars under a five-star federal rating system, or above average. The system, based on health inspections in recent years, acts as a jumping-off point for choosing a skilled nursing facility, but may not reflect the current situation at a home.

Inspection report deficiencies at The Springs include in 2018 when staff failed to report a resident’s eye injury of an unknown origin. This “had the potential to put residents at risk of abuse,” the report states.

Several days before the San Diego lawsuit, the family of a 77-year-old man blamed a loved one’s death on a Los Angeles facility that allegedly prevented staff from wearing gloves and masks during the pandemic, among other allegations, according to the lawsuit.

Industry groups fear a swell of litigation from second-guessing caregivers during what they call tough circumstances, especially early in the pandemic: a dearth of personal protective equipment and tests, coupled with COVID-19 stretching staffing thin.

Equipment and testing shortages have abated in recent weeks in San Diego, according to industry officials and watchers. But there is also debate over who should pay for testing, whether it be governments or the facilities themselves. The hang-up partly explains why universal testing plans in skilled nursing facilities were slow to materialize.

In response to industry advocacy, many states in recent months limited legal liability in senior facilities during the pandemic, but in California, Newsom has not acted on a proposal in this vein.

“Sadly, in the coming days and weeks, they (facilities) will face wrenching, life-threatening decisions in managing scarce resources amid arduous conditions,” states an April 9 letter to Newsom, which was signed by six groups, including the California Association of Health Facilities.

But representatives from groups like California Advocates for Nursing Home Reform say granting the request would give facilities license to commit abuses. They point to reports of facility neglect and bad calls during COVID-19.

Deborah Pacyna, a spokeswoman for California Association of Health Facilities, said the organization hasn’t heard “one way or the other” if Newsom will sign the order.  An inquiry to Newsom’s office about the status of the proposal was forwarded to the California Department of Public Health, which said no decision has been made.

Toby Edelman, senior policy attorney for the Center for Medicare Advocacy, said lawsuits over a failure to prevent COVID-19 – or other abuses during the pandemic – have been uncommon so far because in-person family visits and some inspections are on hold.

“Families haven’t seen directly what’s going on in the facilities,” she said.

In March, the federal government halted routine inspections of skilled nursing facilities, in an effort to focus on containing COVID-19. A May 1 infection control survey of The Springs at Pacific Regent didn’t turn up any violations.

But recent infection probes have been criticized for failing to hold facilities to account. California Advocates for Nursing Home Reform in a June 9 report noted that a partial inspection of Riverside’s Magnolia Rehabilitation & Nursing Center found no deficiencies on April 7, the day before a mass evacuation of the COVID-19-plagued facility.

Besides infection surveys, the California Department of Public Health is conducting virtual visits — and continues to investigate “immediate jeopardy” incidents that hold the potential for serious injury or death.

Skilled nursing facilities face more than litigation. A U.S. House of Representatives committee earlier this month launched an investigation into the country’s largest for-profit skilled nursing facilities, spanning their structures and preparedness for COVID-19. Among the companies that will be scrutinized: Ensign Group, the owner of The Springs at Pacific Regent.

Jared Whitlock reported this story with support from the 2019 Impact Fund, a program of the USC Annenberg Center for Health Journalism.

[This article was originally published by the Voice of San Diego]