The impact of COVID-19 on long-term care home litigation

This article was produced in partnership with Bogoroch & Associates LLP.

Mallory Hendry of Canadian Lawyer sat down with Alexandra Roman, lawyer at Bogoroch & Associates, to discuss how the pandemic is playing out in the context of long-term care home litigation.

During the first wave of the pandemic, residents of long-term care homes accounted for more than 80% of all reported COVID-19 deaths. By mid-December 2020, partway through the second wave, the Public Health Agency of Canada reported about 44,000 cases and 9,200 deaths. As of early March, long term care homes continued to account for the greatest proportion of cases and deaths.

On Nov. 20, 2020, Bill 218, Supporting Ontario’s Recovery and Municipal Elections Act, came into effect and while the impact of the newly enacted legislation remains to be seen, “essentially it raises the burden of proof that the plaintiff has to meet and my interpretation of this is that the Ontario government is significantly restricting legal action arising from COVID-19 in the context of long-term care,” says Alexandra Roman, lawyer at Bogoroch & Associates LLP.

“The plaintiff must prove that the nursing  home or its employees did not make “good faith efforts” to follow public health guidance or federal, provincial or municipal laws related to COVID-19,and that their act or omission constituted gross negligence,” Roman says. “This is a higher burden for the plaintiff to meet.” The legislation does not define “gross negligence” but Roman expects that the Plaintiff will have to prove a a very marked departure from the standard of care.

The impact of Bill 218 depends on how the courts interpret the legislation and apply it to a specific factual scenario. Whether or not the alleged negligent act or omission in a case meets the new threshold of gross negligence will fall on the unique factual circumstances of each case.

When litigating these cases, Roman says parties will likely rely on expert opinion evidence about the applicable standard of care and whether or not it was breached. But what will be an interesting development is whether the standard of care is impacted by COVID, she notes.

“What is the reasonable standard of care expected of a nurse in a LTCH within the context of a pandemic? Within the context of limited resources? The standard of care may fluctuate. The ways in which the standard of care has been impacted by COVID, in the context of long-term care, is also a question that must be taken into consideration.”

Roman imagines the pandemic is also likely to have an impact on the standard of care in medical malpractice litigation more generally. For example, the pandemic has directly impacted wait times for referrals or to undergo certain medical and surgical procedures. In turn, “when analyzing whether the standard of care in delayed diagnosis cases was breached, the impact of the pandemic on the standard of care cannot be overlooked,” she says.

“The standard of care may be impacted by the limited resources available in the context of the health care system — what would be reasonable in the context of COVID may be very different than what was reasonable prior to COVID.”

The Ontario government undertook its own investigation into what transpired at various long-term care homes. The outcome of those investigations and their findings and conclusions will play a role, Roman says, in that to the extent they can, they will be relied upon to support the plaintiff’s case. But each action is specifically against the long-term care home at which the plaintiff was a resident, and she reiterates that each case is unique. Roman adds that “although those findings will be helpful it doesn’t necessarily mean they’ll be applicable to every case.”

"While the impact of COVID has definitely had an enormous impact on long term care, there were systemic problems in terms in providing adequate care and treatment to residents even prior to COVID — the pandemic only amplified those pre-existing issues and brought them to light,” Roman says. “It’s important that the right cases are litigated because it will require an investigation into good faith efforts were made to follow public health guidance or federal, provincial or municipal laws related to COVID-19”.

The interest in these cases is widespread, reaching far beyond the personal injury bar due to extensive media attention on the devastating and disproportionate impact the virus had on the vulnerable long-term care home population. While nobody has a crystal ball, Roman says it’s likely that the bill will limit legal action but the interpretation of “good faith efforts” and “gross negligence” and will have to be interpreted by the court for further clarity

“The hope is that by looking at the specific context of each case and the factual circumstances given rise to these cases, some plaintiffs will still be able to meet that burden of gross negligence,” Roman says. “The litigation process will allow for an analysis of whether or not the policies, protocols and guidelines for infection prevention and control were in place, enforced and followed in long-term care homes.”

Alexandra Roman joined Bogoroch & Associates LLP as a Lawyer in July 2016. She was called to the Bar in 2017. She earned her Juris Doctor from Osgoode Hall Law School, where she developed her interest in litigation by working at the Community and Legal Aid Clinic (CLASP) representing underprivileged clients before a variety of administrative boards and tribunals.