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'A failure of leadership.' Lawsuit filed over COVID-19 deaths at KY nursing home.

Lexington Herald-Leader - 6/23/2020

Jun. 22--In what could represent the leading edge of a wave of litigation, the families of several people sickened or killed by COVID-19 are suing an Adair County nursing home that was hit especially hard by the novel coronavirus this spring.

Signature HealthCare at Summit Manor failed in its duty to provide adequate care and to protect residents Virginia Lee Rowe, Winfred Cowan and Edna Melson, according to a lawsuit filed Friday in Adair Circuit Court.

Attorney Derrick Helm, representing the families, said Monday that he blames the owner, Louisville-based Signature HealthCare, not the direct-care workers.

"I just don't think they were led or guided properly," Helm said. "It's kind of like they (Signature) turned their back on the place."

Fifteen residents and two employees have died at Summit Manor after contracting the coronavirus, according to data from the Kentucky Cabinet for Health and Family Services. Ninety-six people at the facility have been infected.

Kentucky's nursing homes were ordered closed to visitors on March 10. But relatives who looked in windows at Summit Manor during the viral outbreak saw some employees not wearing personal protective equipment, Helm said.

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"They saw personnel inside the rooms of COVID patients without PPE," Helm said. "It is my belief that the employees were not trained, they were not equipped and they were generally not prepared for what they had to face. As a result of this, you had employees who spread the virus. This was a failure of leadership."

In an April 30 survey report, state inspectors cited a Summit Manor employee for failing to wear his mask over his face while sitting inside the residents' dining room. The employee said he had removed the mask "to get a breath of air," according to the survey report.

In its response to the survey, Summit Manor said the employee subsequently was educated about the facility's mask-wearing policy.

On Monday, Summit Manor administrator Lawrence Brown referred questions about the lawsuit to Signature HealthCare corporate headquarters.

"Signature HealthCARE cannot comment on any legally pending matters," corporate spokeswoman Ann Bowdan Wilder said in a prepared statement.

"Our hearts go out to all families, in all long-term care facilities nationwide at this time, who grieve the loss of loved ones or who have endured the difficulty of this virus," she said. "In the meantime, we ask the public to withhold judgment about any pending lawsuit as allegations are proven and disproven in the legal process."

The plaintiffs include the families of:

-- Cowan, 75, a farmer and owner of Cowan and Son Trucking, who died April 27.

-- Rowe, 81, a former employee of Circle R Restaurant and Brown's Country Store, who died May 2.

-- Melson, who was diagnosed with COVID-19 on April 23 and hospitalized. Melson, who also was dehydrated and malnourished, needed weeks to recover, according to the suit.

The suit also represents one Summit Manor resident, Billie B. Crosby, who was hospitalized March 30 for kidney failure and blood clots but who did not test positive for COVID-19. Helm said Crosby's case reflects neglect by the nursing home.

Helm said he wasn't aware of other COVID-related litigation pending against Kentucky nursing homes, but he expects to see more soon. As of Monday, at least 2,462 residents and staff had been infected at 166 nursing homes, with 336 deaths.

To prevail in court, people suing nursing homes in Kentucky -- as in many other states -- have to clear the hurdle of arbitration.

It has become common for nursing homes to ask people to sign arbitration agreements during the admissions process. Later, if the resident or their families want to sue, the nursing home instead can insist that the dispute be resolved outside of the courtroom by a professional arbitrator, who is less likely to award the sort of large damages sometimes handed down by juries.

Different lawsuits have challenged the arbitration agreements as an unfair burden on Kentuckians' constitutional right to have access to the courts. But appellate courts typically have sided with the nursing homes, including, last week, the Kentucky Court of Appeals in a case involving a Signature HealthCare facility in Louisville.

In that case, the family of a nursing home resident said the arbitration agreement should be voided because the facility did not accurately explain its terms, and so it was signed along with other forms as part of the cumbersome paperwork chain. But the resident's relatives should have read all of the details, the appeals court ruled.

"The public policy of Kentucky is that arbitration is a favored method of dispute resolution," the Court of Appeals ruled. "And Kentucky law favors the enforcement of arbitration agreements."

When arbitration agreements are found to be binding, they do pose a challenge, but they're not necessarily an insurmountable obstacle to suing a nursing home, Helm said.

"It's an issue that you have to deal with on an individual basis, client by client," Helm said.

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