COVID Litigation Against Long-Term Care Facilities: Plaintiff and Defense Strategies in State and Federal Court

Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
- work Practice Area
Personal Injury and Med Mal
- event Date
Tuesday, December 6, 2022
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE webinar will discuss whether and how nursing homes, senior living, and long-term care facilities could be required to compensate residents or employees for COVID-related injuries. The program will identify what claims are being brought against which entities or individuals, which claims seem to have legs and why, the problems of causation and damages, and what defenses and defense strategies have or have not proved effective. The program will review how these cases are faring in state and federal court, and address plaintiff and defense perspectives and strategies.
Faculty

Ms. Shimonsky primarily handles health care defense litigation including both long term care cases and medical malpractice cases. She also assists health care companies with other issues that inevitably arise in the industry including navigating regulatory issues, developing and implementing proactive risk management protocols, and providing general legal guidance as technical legal issues arise. Outside of the health care industry, Ms. Shimonsky handles products liability cases, complex business disputes, general professional malpractice including representing clients in administrative board matters, and a variety of diverse issues depending on her clients’ needs.

Mr. Brusca dedicates his practice to representing vulnerable individuals and their families in wrongful death, catastrophic injury, negligence and abuse claims arising in nursing homes, assisted living facilities, psychiatric facilities, hospitals, boarding and group homes. He is a frequent lecturer to lay organizations and fellow attorneys at the state and national level on topics such as facility selection, resident care, litigation, trial practice, and technology issues.

Mr. Barnard is the former vice chair of the firm’s Government Enforcement and Investigations Group with first chair criminal and civil trial experience. Outside of the courtroom, he regularly serves as the representative for individuals and corporations while interacting with the government in a wide variety of scenarios. With a primary focus on advising clients in response to government investigations, he offers full-spectrum legal services to entities and individuals involved in any phase of government investigations including Congressional Investigations and coordination efforts with the government where clients are not the focus of the inquiry. Mr. Barnard offers in-depth experience with qui tams under the False Claims Act as well as federal and state investigations, with a large portion of his practice serving organizations and professionals in the health and defense industries. Other areas of practice include government contracts and procurement fraud; cybersecurity; national security; military law; defending law enforcement in civil rights litigation; and general commercial litigation and trial experience.

Mr. Goodwin practices in the Shreveport, LA area. He began his career as a medical malpractice defense lawyer but switched over to the plaintiff's side. He recently obtained a plaintiff verdict in a lost chance medical malpractice case (currently pending on appeal).
Description
At the start of the COVID pandemic, many states enacted laws providing near absolute immunity to liability in most provider situations, except for intentional, reckless, and wanton conduct. Quite a few of these laws have expired, been amended, or been repealed, and state trial judges are interpreting the effect of these changes in different ways with different results.
Many plaintiffs advocates argue that protections at the beginning of the pandemic when little or no information or protocols were available are no longer relevant.
Inconsistent results have met defendants attempting to remove cases to federal court under the Public Readiness and Emergency Preparedness Act (PREP Act) or arguing that the PREP Act provides the exclusive remedy for COVID claims. PREP ACT cases hinge on whether the facilities, officers, directors, owners, etc. are considered a "covered person" under the Act, and if the treatment/provisioning was in line with the PREP Act standard.
Furthermore, as seen during COVID and more recent statements by the President, Department of Justice, and HHS, enforcement activity often happens simultaneously with this litigation. This crossroads of legal exposure raise the risks and require careful strategy.
Listen as this experienced panel of attorneys analyzes COVID litigation against nursing homes and long-term care facilities.
Outline
- Defining a viable COVID-related claim
- State immunity statutes
- Applicability of PREP Act
- Damages
- Types of damages
- Calculation of damages
- Strategies for plaintiffs
- Strategies for defendants
Benefits
The panel will discuss these and other key issues:
- How can plaintiffs establish causation?
- Does the type of facility and level of care matter when seeking damages for COVID-related injuries?
- What states have the most and least protections for defendants?
- What defenses and defense strategies have been effective?
- How had increased government enforcement impacted strategy in private litigation?
- What are the risks and associated mitigation techniques for handling simultaneous litigation and government enforcement activity?
Unlimited access to premium CLE courses:
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Unlimited access to premium CPE courses.:
- Annual access
- Available live and on-demand
- Best for CPAs and tax professionals
Unlimited access to premium CLE, CPE, Professional Skills and Practice-Ready courses.:
- Annual access
- Available live and on-demand
- Best for legal, accounting, and tax professionals
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