The next COVID threat?  It could be lawyers.

September 25, 2023 Guest User

By Alison Adduono, Director of Marketing Communications

The recent late-summer COVID infection surge has triggered interest from an unlikely segment of the population: plaintiff’s lawyers.

Why?

During the pandemic, employers and health care facilities took extra precautions to ensure facilities, employees, and patients were free of COVID-19 infection risk through heightened cleaning regimens and readily available testing.

But with the May 2023 removal of the public health emergency, no more free antigen tests, and a seasonally lowered infection rate, there is a collective lower awareness of COVID prevention. That is changing now with more employers calling employees back to offices, schools resuming, and more people following a pre-pandemic “normal” lifestyle.

Not so for some in the legal world. Recent news headlines suggest they are gearing up for possible targets this fall, including nursing homes and large employers.

Long-term care settings, such as nursing homes and assisted living communities, provide care to over 1.3 million people and 800,000 residents, respectively, according to data published in the National Library of Medicine. During peak COVID, these facilities accounted for 5% of COVID-19 cases and 34% of deaths nationwide, even though they only account for less than 1% of the US population.

These facilities stepped up and instituted protocols and procedures to adequately protect their patients/residents and employees. For the best outcome and to prevent spread, it was vital to identify cases quickly, isolate them immediately, and treat them quickly. Early and frequent testing helped to identify anyone who may have come into contact with infected people so they too could be quickly isolated and/or treated.

Earlier this year as case counts declined, practices changed, however. This past May, while at the Senior Living Executive Conference in New Orleans, operators shared that many nursing homes were no longer concerned with COVID or even testing for it. Enter lawyers looking for facilities not exhibiting attentive prevention techniques.

AARP reports that this past August, one out of four assisted living/nursing home facilities reported resident infections and one in three had staff infections.

Risky Move?

According to new research in “Morbidity and Mortality Weekly Report”, only 31.2% of nursing home residents are considered to be up-to-date on their COVID-19 vaccines. In order to be considered up to date, the patient should have received a bivalent dose of COVID-19 mRNA vaccine or had completed a primary series of vaccination within the previous two months.

Ideally these providers and large employers should remain vigilant in their screening for COVID to ensure that their patients and employees remain safe and healthy, in an effort both to maintain strong care but also to minimize legal exposure.

Photo Credit: iStock by Getty Images

While many states have passed laws or issued executive orders granting immunity to Covid-related lawsuits, making it difficult for anyone lodging a case against an employer or a senior living facility, it is not a done deal. Some civil lawsuits have already been brought and as more deaths occur, it is likely that grieving families will sue employers or the facilities caring for their loved ones for either wrongful death and/or negligence.

So, what is a facility or employer to do? Jennifer Nuzzo, an epidemiologist and director of the Pandemic Center at Brown University School of Public Health recommends proactive targeted COVID testing of individuals in assisted living/nursing homes, a practice that many large office-based employers are also looking to begin. Conducting routine molecular testing (which detects the virus at the earliest opportunity) especially when we enter respiratory season will remain key to maintaining the health and safety of the American population.

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The AscencioDx® Covid-19 Test and The AscencioDx® Molecular Detector have not been FDA cleared or approved, but have been authorized for emergency use by FDA under an EUA for use by authorized laboratories. This product has been authorized only for the detection of nucleic acid from SARS-CoV-2, not for any other viruses or pathogens. The emergency use of this product is only authorized for the duration of the declaration that circumstances exist justifying the authorization of emergency use of in vitro diagnostics for detection and/or diagnosis of COVID-19 under Section 564(b)(1) of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 360bbb-3(b)(1), unless the declaration is terminated or authorization is revoked sooner.