June 30, 2020 by Greg Meckbach
Insurers could be instrumental in pushing nursing homes and long-term care facilities to improve the way they manage the risk of a disease outbreak, a Toronto-based personal injury lawyer suggests.
“As a plaintiff’s personal injury lawyer, I usually don’t see the insurance industry as my ally,” said Darryl Singer, head of the commercial and civil litigation practice at Diamond and Diamond Lawyers LLP. But the personal injury lawyers and commercial liability insurers could have common cause in the ongoing health crisis in nursing homes and long-term care facilities.
“The insurance companies can be a very good ally of the [nursing home and long-term care] residents because the insurance companies could come in and say, ‘Hey, if you guys don’t adhere to these particular risk management practices, we are just not going to insure you,’ and that would benefit the insurers because it would eliminate an awful lot of litigation that they pay out on right now,” Singer told Canadian Underwriter.
Nearly two-thirds (64%), of the 2,665 Ontario residents who have died from COVID-19 were in long term care homes, the provincial government reported Monday.
COVID-19 was declared a pandemic March 11 by the World Health Organization. The majority of deaths from the disease — in Quebec, Ontario, Alberta and Nova Scotia — were in long-term care homes, The Canadian Press reports.
As of early June, there were eight COVID-19-related class-action lawsuits against seniors’ homes across Canada, CP reported at the time, quoting Michael Smith, a partner at Bennett Jones.
“I have gotten a lot of very sizable cheques from insurance companies over the years on nursing home negligence cases,” said Singer of Diamond and Diamond. “The insurance industry doesn’t want to keep paying out negligence claims for nursing homes. And, quite frankly, for the sake of the people who are suffering, I would be very very happy if this problem got fixed and I never ever had another nursing home claim again in my career.”
For its part, the Ontario Long-Term Care Association said earlier the industry is facing staffing challenges and the COVID-19 pandemic has exacerbated existing issues. The association said this past May it called on the province to immediately implement urgently needed short-term interim solutions by supplying more personal protective equipment and rapid testing and making essential investments for older homes to enable more effective infection control required by the spread of COVID-19, among other things.
Critical risk mitigation measures at long-term care facilities and nursing homes include having enough staff on hand, having a stockpile of personal protective equipment and being prepared for outbreak of diseases in general, Singer told Canadian Underwriter last week.
“Forget COVID for a minute. Influenza comes around every single year. We know that. And there is probably no place where [influenza] is more dangerous than in a nursing home or a long-term care home.”
These homes can also be hit by outbreaks of other diseases such as food poisoning, notes Singer. “You have to know if you are running these homes that this is a possibility. So what they ought to be doing is to simply say, ‘Okay we are going to have proper contingency planning for any sort of health outbreak — whether it is food poisoning or influenza.’”
Diamond and Diamond is representing plaintiffs in class action lawsuits — seeking damages of about $150 million — against operators of senior citizens’ residences. Allegations against those defendants have not been proven in court.
Singer spoke to Canadian Underwriter this past Wednesday after attending a rally near Queen’s Park urging the province not to table legislation limiting plaintiffs’ rights to sue seniors’ care facilities for damages arising from COVID-19.
In April, the Ontario government formally requested assistance from the Canadian Armed Forces to support long-term care homes that were facing challenges with staffing, infection prevention and control, resident safety, food preparation and janitorial services.
In May, a report from the military indicated that in some cases, people were left in filth for weeks, others left on the floor where they had fallen and some patients were choking while being improperly fed, the Canadian Press reported. The report was made public by Ontario Premier Doug Ford, who described the allegations as “gut wrenching,” CP reported.
“There is a general understanding that many of these places are not run very well,” Stephen Stewart, president and CEO of Toronto-based Stewart Specialty Risk Underwriting Ltd., told Canadian Underwriter earlier.
“Now you have some documentary evidence of that and I think insurers are probably going to look at the class as a whole more carefully and probably wonder whether this is a systemic issue with the entire class. That is going to have an effect on how this stuff is underwritten,” Stewart said in reaction to the report from the military.
Going forward, underwriting liability risk for nursing homes and long-term care facilities will be far more “granular,” Stewart suggested.
Feature image via iStock.com/Dean Mitchell