Why it’s hard to determine liability when a plaintiff catches coronavirus in nursing home

Liability insurers and courts could be entering uncharted legal territory when dealing with class-action lawsuits against nursing homes or long-term care homes in which residents have become sick and died from the coronavirus.

In some cases, a question before a court could be whether it was foreseeable that residents would suffer harm unless certain measures were taken, said Erika Carrasco, Calgary-based partner with Field Law, whose specialties include insurance and litigation.

“With some of these class actions in Ontario and Quebec, that have commenced, it will be interesting to see what the courts will do in trying to devise what the standard of care ought to have been in these circumstances since we have never been through this type of situation before,” she said.

Outbreaks in long-term care and senior homes have been driving the coronavirus epidemic and are responsible for the vast majority of deaths, according to The Canadian Press, citing federal public health officer Dr. Theresa Tam’s reports that Canada has about 50,000 confirmed cases and the rate is doubling every 16 days — rather than the three to five days seen three weeks ago. Though adults over the age of 60 accounted for 95% of the more than 2,700 deaths, Tam warned no one was immune.

If a resident or family member sues a long-term care or nursing home in Ontario, there could be cause of action under the Occupiers Liability Act, Stephen Stewart, CEO of MGA Stewart Specialty Risk Underwriting Ltd., told Canadian Underwriter. Ontario also has the Long-Term Care Act, which requires operators to keep their residents in a safe and secure environment and protect them from abuse and neglect, he added.

“When you get something like an epidemic, be it COVID-19 or influenza, they tend to rage through these homes if they are not prepared for them. And I think with influenza, there are procedures in place. But with this one, there are a lot of different factors that can cause it to spread really quickly,” said Stewart. “The fact that asymptomatic people can spread [COVID-19] is a big concern. And in long term care homes, a lot of the workers are part-time and they work at different care homes. So if they are asymptomatic and going from facility to facility, certainly the ability to spread it is really much greater. And I think, from the operator’s perspective, if they are not able to screen these people properly, there is certainly they would have vicarious exposure.”

For its part, Alberta has its own Occupiers Liability Act, notes Carrasco. Other causes of action could be Alberta provincial law and breach of contract.

Long-term care and nursing home operators have a duty to keep premises safe from hazards or unsafe conditions but there is the question of how that would fit into COVID-19, observed Carrasco.

“I think it is going to be very difficult for the court to try and dry and draw comparisons to the outbreak of influenza in a long-term care facility or to cases of abuse and neglect,” she said. “To determine what is reasonably foreseeable is going to be very difficult and challenging, not only for the courts, but for the plaintiffs to prove.”