The Legal Fallout from COVID-19 Has Already Begun for Ontario’s Long-Term Care Homes: Action for Negligence in Death of LTC Resident

The family of a deceased resident of a long-term care (“LTC”) home in Ontario has filed a 1.5-million-dollar lawsuit against the LTC home for alleged negligence and failure to protect its residents. The resident, Paul Parkes, died at the LTC home on April 15 and was confirmed to have had COVID-19. He is one of the 70 residents of the LTC home and who have died of COVID-19 in the past few months.

The central claim of the lawsuit against the LTC home is that it failed to protect Mr. Parkes and other residents due to inadequate preventative and responsive measures to the COVID-19 outbreak. By failing to have these measures in place, the family claims that the LTC home fell below the expected standard of care and thereby breached the duty of care owed to Mr. Parkes in the circumstances. They further allege that the LTC home failed to:

  • Hire sufficient staff to provide care to residents;
  • Provide proper training and supervision of employees;
  • Implement adequate physical distancing and isolation measures;
  • Implement a visitation policy within a reasonable time frame;
  • Implement proper screening for visitors, residents and staff;
  • Provide adequate personal protective equipment (“PPE”) for visitors, residents and staff;
  • Communicate with residents’ families; and
  • Ensure that Mr. Parkes was diagnosed and received care for COVID-19, including a lack of assessments and record keeping regarding his care.

Class Action Lawsuits

The first class-action lawsuit against a long-term care facility in Ontario was filed on April 30, 2020 and is based on similar allegations related to the deaths of several residents at LTC homes operated by one LTC provider. The class-action has since been expanded to include a second LTC provider who similarly operates several homes across Ontario that have experienced outbreaks of COVID-19. The plaintiffs allege that the LTC homes failed to enact proper sanitation protocols or adequate testing to prevent the spread of COVID-19 and cites concern over poor communication with residents and their families regarding the risk of infection, or measures being taken to protect residents. The LTC providers claims that they have been following government directives related to COVID-19 in its LTC homes.

On May 26, 2020, a class-action lawsuit was also launched against the same LTC home of which Mr. Parkes was a resident. In addition to allegations regarding COVID-19, the lawsuit alleges a history of substandard care dating back to 2015 when the current operator purchased the home.

LTC Homes in Crisis

The crisis in Ontario LTC homes has been developing slowly but surely as LTC providers, government officials, and public health experts struggle to address the various threats facing LTC homes. These threats include staffing shortages, PPE shortages, inadequate infection control and prevention measures, an inability to meet patient care needs and poor communication with stakeholders such as residents and their families, resulting in legal actions and complaints from families and whistleblowers. Ontario’s COVID-19 action plan for long-term care homes has so far included the provision of PPE and emergency funding, as well as guidelines and directives regarding staff working in only one LTC home, PPE use, screening procedures, testing, and who can visit LTC homes.

Extraordinary measures have also been taken to support LTC homes at the federal and provincial level through the deployment of the Canadian Armed Forces and Mandatory Management Orders (“MMOs”) pursuant to O. Reg. 210/20, Management of Long-Term Care Homes in Outbreak under the Emergency Management and Civil Protection Act. On April 24, 2020, the Military were deployed to five long-term care homes at the request of the provincial government. A report outlining the concerns and observations of Military personnel working in these homes was released one month later, and included allegations ranging from substandard care to poor infection control procedures to the outright abuse of residents. On June 1, 2020, the Ontario Ombudsman Paul Dubé cited the Military’s report in a press release announcing that he was invoking his authority to launch an investigation into the oversight of LTC homes by the provincial government during the COVID-19 pandemic.

On May 27, 2020, the province announced that it would be making MMOs for five homes which were the subject of the military report in addition to inspections of high-risk LTC homes. MMOs allow the Director under the Long-Term Care Homes Act (“LTCHA”) to name a new manager of any LTC home under the LTCHA. Two other LTC homes experiencing COVID-19 outbreaks were placed under MMOs on May 25, 2020, with local hospitals appointed to temporarily manage the homes for 90 days with the potential to extend the orders as necessary. Both homes were experiencing COVID-19 outbreaks with high rates of residents and staff infected. Notably, some hospitals have already been providing help to local LTC homes, such as Michael Garron Hospital’s Long-Term Care Collaborative Outreach Group which has been collaborating with LTC homes in Toronto’s east end to help fill the gaps in staffing, environmental services and disinfection, education, and PPE supply.

Despite these efforts, COVID-19 has taken a devastating toll on Ontario’s LTC homes, with both staff and residents demonstrating high rates of infection. At the time of writing, the total confirmed deaths for LTC residents from COVID-19 was a staggering 1,465, and continues to increase daily (for up to date information regarding COVID-19 cases in Ontario, please visit the province’s official website). In the face of these tragic losses, it is likely that families of deceased residents will continue to seek accountability through the courts for the deaths of their loved ones where they suspect negligence by a LTC provider. Indeed, some counsel are anticipating a flood of COVID-19 related claims, including in the LTC sector.

It remains to be seen whether these lawsuits will be successful, but these cases will likely turn on the issue of whether the actions of LTC providers involved were reasonable under the circumstances, including consideration of what was reasonable in light of the COVID-19 pandemic. While following government guidance and directives regarding COVID-19 may not be enough to meet the standard of what a reasonable person would do under the circumstances, they are a good place to start. In order to minimize legal risks, it is critical that LTC providers ensure that the following steps are taken to protect residents, staff and visitors from COVID-19 in all LTC homes:

  • Implement policies in all LTC homes which reflect government and public health guidelines and directives and document this process where possible;
  • Where a decision deviates from government and public health guidelines and directives, carefully document why this decision was made and attempts to follow said guidelines and directives;
  • Ensure that all statutory requirements under applicable legislation are being met;
  • Maintain existing standards related to the provision of care, charting and safeguarding personal health information;
  • Establish clear and regular channels of communication with staff, residents and their loved ones to reduce anxiety and build trust; and
  • Collaborate with others in the LTC sector, legal counsel, government, and regulatory bodies to address resource shortages and other issues as they emerge.

If you or your organization have questions regarding how to navigate the COVID-19 crisis in long-term care, please contact us.

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