As nursing home residents died, new covid-19 protections shielded companies from lawsuits. Families say that hides the truth.

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By Debbie CenziperPeter Whoriskey, Shawn Mulcahy and Joel Jacobs, Washington Post, June 8 2020

At a Connecticut home that lost one in three residents to covid-19, a daughter searches for answers

Notes for health-care workers hang in a front window at the Kimberly Hall North nursing home in Windsor, Conn. (Chris Ehrmann/AP)

One afternoon in early April, Brenda Anagnos crouched in the bushes outside a nursing home in Windsor, Conn., and pressed her face to the window.

“Mommy,” she yelled. “I’m here.”

From outside the locked-down facility, Anagnos said she watched her mother, wearing a red tank top, shiver beneath a hospital sheet. Diagnosed with covid-19, she could barely raise a hand. Anagnos said she called the front desk for a nurse, a blanket, some help with an electrolyte drink.

Like others with family members in nursing homes, she said she was terrified about what might be happening behind closed doors. Her fears grew the next morning when a family friend peered through the window and took a photograph of Anagnos’s mother, Carol Ballard, 81, lying on the floor in front of a wheelchair.

The grandmother of four died the next morning, on April 6, amid one of the deadliest nursing home outbreaks in the country.

“She had life left,” Anagnos said. “She didn’t deserve to die like this.”

On April 5, Carol Ballard could be seen through a window at Kimberly Hall North lying alone on the floor of her room. The family friend who took the photograph called Ballard’s daughter, who called the nursing home for help. Ballard, who had covid-19, died the next morning. (Photo by Sherry Shepherd)

Anagnos and the bereaved families of other residents want answers from the home, where 47 of its 138 residents have died of covid-19 — more than one in three, according to facility administrators. But exactly what happened at Kimberly Hall North during the chaotic early weeks of the pandemic may never be known.AD

On the day before Ballard died, isolated from family members, Connecticut Gov. Ned Lamont (D) issued an emergency order granting nursing homes immunity from most lawsuits during the coronavirus pandemic.

Similar to recent measures in about 20 other states, the Connecticut order has sweeping implications, depriving potential plaintiffs not only of financial recourse in the courts but the ability to uncover an accounting of their relatives’ last days in nursing homes. The demand for information during the crisis has become particularly urgent: Since March, federal officials have curtailed routine inspections and restricted visitors in homes, leaving families to peer through windows or plead for information over the phone.

“Even with a history of these nursing homes having problems, why was immunity put in place?” Anagnos said. “I’m not looking for money. I’m looking for somebody to be held accountable.”

Officials with Genesis HealthCare, which owns Kimberly Hall North and is the nation’s largest nursing home chain, said staff members did everything they could to prevent the spread of infection and treat sick patients. Two employees without symptoms likely introduced the novel coronavirus in mid-March before anyone knew it was there and before health experts understood that it could spread from apparently healthy carriers, said Richard Feifer, chief medical officer for the Pennsylvania-based chain, in emails and an interview with The Washington Post.

“The staff caring on the front line for residents have shared in the emotion and grief families have felt, and we understand how difficult a time this has been,” he said. “With that said, the experience we have had with our families at Kimberly Hall North has been overwhelmingly positive.”

For weeks, health-care associations nationwide have pressed governors for immunity from lawsuits, in some cases offering specific language for emergency orders, according to letters, public statements and media accounts. The groups also have appealed to Health and Human Services Secretary Alex Azar, House Speaker Nancy Pelosi (D-Calif.) and Senate Majority Leader Mitch McConnell (R-Ky.), who vowed on the Senate floor last month to extend new coronavirus-related protections to a number of groups, including the health-care industry.

McConnell, like other advocates for immunity, cast the measures as a way to protect “health-care heroes” — doctors, nurses, researchers — from nuisance lawsuits.

“We are not going to let health-care heroes emerge from this crisis facing a tidal wave of medical malpractice lawsuits so that trial lawyers can line their pockets,” he announced.

But what plaintiffs’ lawyers and patient advocacy groups contest most is not whether immunity should be extended to health-care personnel, but whether those protections should also extend to nursing homes and their owners. In their view, troubled facilities ought to remain subject to litigation resulting from life-threatening failures in infection control and patient care, and families offered a chance to pierce the layers of secrecy that often surround unexpected or unexplained deaths.

Since the start of the pandemic, more than 30,000 nursing home residents have died of covid-19, state data shows. Through the discovery process in civil litigation, family members would have an opportunity to obtain medical and company records and the sworn depositions of caregivers and company officials.

“The industry seized on this crisis to try to get a get-out-of-jail-free card,” said Steve Levin, a lawyer in Chicago who is working with about 100 nursing home residents and families who plan to file suit in Illinois, despite the state’s immunity order. “I’ve never seen anything like it.”

The immunity measure in Connecticut, where state officials have reported 2,500 covid-19 deaths linked to nursing homes, came after a group of health-care associations banded together to appeal for relief. In a March 31 letter to the governor’s office, reviewed by The Post, the group proposed wording for an executive order. Five days later, Lamont issued an order using some language from the letter.

Lamont’s office did not respond to repeated requests for comment, but his emergency order said that immunity would encourage “maximum participation” from health-care workers during the pandemic. Like those in other states, the order does not protect nursing homes from the most egregious allegations, those involving gross negligence, criminal activity or willful misconduct.

Already, members of three families from Kimberly Hall North say they have had trouble finding lawyers willing to consider legal remedies.

Do you work at a nursing home or have a loved one at a long-term care facility? Share your experience with The Post.

Among them is Roberta James-Brown, who described the quality of care at the home before the pandemic as “impeccable.” Now, she questions how her bedridden father became infected and why she didn’t receive more information in the final days of his life.

She said a caregiver at the home told her on April 7 that her father had a high fever. The next day, she said, the home said he was feeling better, eating, talking and sitting up in bed. On April 9, Johnny James, an Army veteran who liked to share Hershey bars with his great-grandchildren, was dead at 85 from covid-19.

“I don’t even know if they were neglectful, but I do know my father is dead because of covid, and he wasn’t walking around that facility picking it up by himself,” James-Brown said. “I want a clear picture of what really went on there.”

James-Brown lodged a complaint with the Connecticut Department of Public Health. In a May 27 letter, the department confirmed that it would open an investigation. She also contacted a law firm but said she was advised by an attorney that the immunity order would make an individual case more difficult. She faults the governor and his advisers for shielding nursing homes.

“He’s trying to make them untouchable, which means they don’t have to be accountable for what happened,” she said. “And that’s not okay.”

Feifer, the chief medical officer for Genesis, declined to comment on individual cases. He said the home sought in March to have all 138 residents tested but the state could provide only six tests. A week later, the state provided six more.

Jack Campise talks with his mother, Beverly Kearns, through her apartment window at Kimberly Hall North in May. (Chris Ehrmann/AP)

So far, 120 residents at Kimberly Hall North have been infected, according to the home. So have 43 of 157 employees.

The extent of the outbreak at Kimberly Hall North, Feifer said, reflects the frailty of the patients there, as well as the fact that many had dementia, a condition that can make social distancing difficult to enforce. He added that the outbreak came early, striking before the Centers for Disease Control and Prevention warned that infected people without symptoms could spread the virus.

Feifer said the home set up video conferences to keep families informed and adopted stringent infection-control measures, such as the universal use of masks. He also pointed out that the home had a series of inspections since the start of the outbreak and that no deficiencies related to patient care or infection control were found. The staff, Feifer said, “did everything they could do and more.”

On April 20, however, government inspectors cited the home for not documenting whether a covid-19 patient at risk of weight loss and dehydration was consistently consuming food and fluids. Although a care plan in February had instructed the staff to report any signs of malnourishment to the doctor and dietitian, the resident’s fluid consumption in April had decreased by half, according to the inspection report.

Feifer described the inspectors’ findings as “tags … for incomplete documentation” rather than breakdowns in patient care.

The findings provide only a limited glimpse inside the home, but the citation is one of the few records available to families of the dead.

A call to action

Although nursing homes have ranked among the deadliest of all group settings during the pandemic, the disparity in coronavirus cases is still a medical mystery: Why have some homes, such as Kimberly Hall North, had dozens of deaths while others have been able to contain the outbreaks? By helping to stave off scrutiny, legal immunity makes it less likely that the public will ever fully know, lawyers and patient advocacy groups say.

Search The Washington Post’s database of coronavirus cases in U.S. nursing homes

The push to protect the industry has played out in state capitols across the country. Industry associations have appealed to the governors of Florida, Maine, Pennsylvania and Tennessee, among others. In California, the groups in an April 9 letter offered Gov. Gavin Newsom (D) language for a proposed order: “All state statutes and regulations are hereby waived to the extent necessary to achieve this immunity.”

In New York, a massive state budget bill in early April included an immunity provision covering homes and workers. The Greater New York Hospital Association lauded the move in a news release, saying the group had “drafted and aggressively advocated” for the legislation and thanking Gov. Andrew M. Cuomo (D) and legislators for “working with us so effectively.”

A spokesperson for Cuomo said that the provision does not excuse gross negligence and that it was passed when officials were worried about running out of critical care beds.

“If we had not done this, we never would have had enough front-line health-care workers working and taking care of patients,” said Dani Lever, the governor’s communications director.

In Connecticut, where Anagnos’s mother died, industry groups offered Lamont language for an order, suggesting in a letter that health facilities “shall be immune from civil liability for any injury or death alleged to have been sustained as a result of an act or omission in the course of providing medical or other health care services in support of the State of Connecticut’s response to the COVID-19 outbreak.”

Lamont’s April 5 order, which borrowed phrases from the letter, granted immunity to health-care businesses and their workers.

Since the pandemic began, about 20 states have approved immunity orders, most shielding both companies and employees. Some states, including California and Florida, have resisted calls for action. Others, including Maryland, already had some form of immunity in place during emergencies.

More than 25,000 nursing home residents and 400 staff have died during pandemic, federal report shows

Industry groups also contacted national lawmakers, sending an April 8 letter to Pelosi and McConnell that called on Congress to “follow the lead of several states and immediately adopt legislation.” The letter was sent by the Health Coalition on Liability and Access, which represents 36 associations, including the American Health Care Association.

The groups argue that nursing homes and front-line workers are responding to an unprecedented health emergency and deserve protection from lawsuits, particularly when medical equipment and tests are in short supply. The protection comes as the industry continues to lobby for federal aid, with the government recently agreeing to release nearly $5 billion in relief funding to the country’s 15,000 Medicare-certified nursing homes.

“It’s critical that states provide the necessary liability protection staff and providers need to provide care during this difficult time without fear of reprisal,” said Mark Parkinson, president of the American Health Care Association and the National Center for Assisted Living, which represents 14,000 long-term-care providers.

Industry’s long-standing agenda

Patient advocacy groups and legal organizations counter that even before the pandemic, many homes had been unable or unwilling to meet basic health, safety and staffing standards set by the federal government. Nursing homes, critics say, could use immunity to evade long-standing liabilities.

A Post analysis in April found that 40 percent of nursing homes with reported coronavirus cases had been cited more than once in recent years for violating federal standards meant to prevent the spread of infections. A report by the Government Accountability Office last month, which cites The Post’s analysis, found that 82 percent of homes had been cited over a five-year period for lapses in infection control and prevention.

Hundreds of nursing homes with coronavirus cases have violated federal infection-control rules in recent years

Watchdog groups say the industry used the coronavirus emergency to push a longstanding agenda to limit liability and lawsuits. For decades, nursing homes have lobbied to set legal limits for damage payments and to compel nursing home residents to forgo the courts and take their cases to arbitration, where homes more easily prevail, lawyers said.

Even without immunity, proving how the coronavirus slipped inside a home is difficult, plaintiffs’ lawyers say.

“This so-called flood of litigation is simply not going to materialize,” said Robert Sachs, past chairman of the nursing home litigation group at the American Association for Justice. “These are going to be very difficult cases to prove on a number of levels. The hurdles are high.”

Levin, the Chicago lawyer, said he plans to show that homes with a history of staffing shortages and poor care did not stop the spread of the coronavirus or properly provide treatment to ailing patients.

“Yes, it’s a challenge,” he said. “But it’s a challenge we feel that many long-term-care providers will not be able to meet because they had absolutely nothing in place for an infectious-disease-type pandemic. They were wholly unprepared.”

Families say they are willing to take a gamble in court.

Brian Jones, who lost his 78-year-old mother to covid-19 at Kimberly Hall North in April, said he was told after her diagnosis that she was faring well and was comfortable. “It was like a couple of days,” he said, “and she was dead.”

He said that his family has struggled to learn more, but that several lawyers declined to take the case. He said he questions the governor’s decision to offer immunity to nursing homes.

“They don’t live in it. They don’t deal with it. They don’t see it,” Jones said.

Feifer, the chief medical director of Genesis HealthCarethe company was unable to comment on the cases but added that caregivers did everything possible to keep family members informed and provide lifesaving care. “I have confidence, he said, “that the team at Kimberly Hall North was highly communicative … and highly transparent.”

‘Resident went peacefully and quickly’

Brenda Anagnos, left, frequently visited her mother, Carol Ballard, at Kimberly Hall North. In 2019, Anagnos took her mother for a visit with family friends. (Photo by Fred Schadt)

Anagnos’s mother, Carol Ballard, died at Kimberly Hall North four days after her 81st birthday.

Ballard raised two daughters on a secretary’s salary, scraping together money for gymnastics lessons and a rented duplex in Manchester, Conn. She danced to country music and sang in the church choir before settling into an assisted-living community and, one year ago, the memory-support unit of Kimberly Hall North.

“I’ve got a good feeling,” Anagnos recalled saying the day she toured the building. “This is all working out.”

In January, when Anagnos visited from Pennsylvania, Ballard ate pizza and walked the aisles of a Target store. Anagnos promised that she would be moving back to Connecticut with her husband and young daughters. “Only a few more months,” she told her mother.

On March 24, however, Ballard developed a fever and cough. Her roommate came down with the same symptoms, according to Ballard’s records from the home, which Anagnos provided to The Post. A covid-19 test came back positive, the records show, and nurses were instructed to be sure that Ballard had enough to eat and drink.

On March 30, Ballard was found on the floor of her room. Records from the home say that she “sat herself on the floor.” Anagnos said she received a call from the home but was not given details.

Anagnos sent a text to a social worker at the home.

“I’m so upset. What is happening?” Anagnos said, according to the exchange, which she provided to The Post. “Did she fall? Is she going crazy?”

“It’s OK. I heard earlier today that they saw her sit herself on the floor then scoot on butt,” the social worker replied. “Maybe she felt weak (?) It could be increased confusion related to everything.”

On April 2, Ballard’s 81st birthday, the home wrote that she was at nutritional risk, consuming only about half her fluids. On a video call that day, Anagnos said she cried when she saw her mother, who was groggy and asking for a Coke. “We’re coming home,” she recalled telling her mother.

The next day, Anagnos loaded her husband, two daughters, cat and a Chihuahua named Chili into two cars, bound for the New Jersey Turnpike. After speaking to her mother by phone, Anagnos said, she called the nursing home but could not get through. Again, she texted the social worker.

“I just spoke to my mom and she said she is awful!!! She wants to eat and drink,” Anagnos wrote. “Very thirsty! Please someone check on her.”

“There is something wrong with our phones that are [sic] are trying to fix,” the social worker texted back. “I will try to track the nurse down while I’m on my call.”

“I told her she has to fight this!” Anagnos replied. “She said she has never felt so bad! … She needs hydration to help her mind as well. Praying this is the worst of it.”

The social worker told Anagnos that a staff member had confirmed Ballard was stable. “She just got her fluids and your mom drank well,” the social worker wrote. “Appetite hasn’t been great but they are encouraging her to eat.”

In Connecticut the next day, Anagnos stood behind a bush outside her mother’s window. She said she saw her mother wearing a tank top and an adult diaper, barely able to wave. For nearly an hour, Anagnos said, no one came into the room.

“You’ve just got to drink,” Anagnos recalled shouting when she saw a water bottle on her mother’s nightstand. Ballard sat up slowly, and Anagnos said she watched as her mother fumbled with the cap. From her cellphone, Anagnos reached a receptionist, who eventually sent in an aide to help Ballard take a few sips from a cup.

Ballard’s head wobbled and fell, and the aide lowered the top of the bed. Anagnos said she decided her mother needed to rest and walked back to her car in tears.

Later that day, she sent a text to the social worker. “I was asked kindly today if I would stop calling so much,” Anagnos wrote. “After visiting my mom through window for over an hour — she was with only a sheet, a Depends and a sleeveless top! Her fluids were next to her, but no one ever came to help her drink! … Can you please give me the name and number of a supervisor?”

The social worker replied: “You would have to call the main # and ask for the nursing supervisor. I can ask the nursing director to call you if you’d like.”

The next day, Anagnos said she arrived to find her mother in someone else’s pajamas, lying in a fetal position and twitching in bed. “Mom,” she recalled yelling. “Can you see me?”

Anagnos called out for an aide who had delivered food. “She’s not going to make it, is she?” she yelled from outside. Anagnos could not hear the answer through the window.

Anagnos headed to her car and used her cellphone to look up the symptoms seen in patients before death. Then she walked back to the window for the last time.

“Mom, just go,” she finally said. “Go. It’s okay.”

A family friend who is an emergency room technician visited a few hours later and snapped a photo of Ballard lying alone on the floor of her room. She called Anagnos, who called the home. Staff members put Ballard back in bed, Anagnos said. Records from the home noted that Ballard had fallen.

The next morning, she died. “Resident went peacefully and quickly per nurse. Call placed to daughter,” according to the records. “Condolences offered. Resident’s [daughter] does want her stuff. Housekeeping notified to pack items & store.”

Feifer, the medical director, said he could not comment on the specifics of the case, citing privacy laws. In general, he said, patients sometimes fall despite the efforts of staff members and that some in the medical community have debated whether aggressive hydration through IVs for some coronavirus patients can have detrimental effects.

“It would be misleading to portray the excellent level of care provided at this center, even amid the extraordinarily difficult circumstances covid-19 has posed, through the prism of one or two subjective accounts,” he said.

Anagnos said she believes the home did not do enough to keep her mother hydrated and safe. She also questions why her mother wasn’t taken to a hospital.

After she buried her mother, she called Connecticut state lawmakers. Sen. Dan Champagne (R) wrote a letter to state health officials in April. “It appears to be neglect on the part of the nursing home, which contributed to the overall rapid decline of this patient. Can your office please investigate this and take appropriate action?”

Since then, Anagnos said she has been trying to find a lawyer willing to sue the home. Two said they were not accepting covid-19 cases and a third declined, citing the governor’s immunity order.

“My mother could have beat covid. I know it in my heart of hearts,” she said, adding: “No one cared or paid much attention. I just feel like someone should be held accountable.”

Mulcahy and Jacobs are graduate students in journalism at Northwestern University’s Medill Investigative Lab. Alice Crites contributed to this report.