A wrongful death lawsuit alleging failure to comply with COVID-19 protocols can move forward after a circuit court judge ruled that assisted living communities are not healthcare providers and therefore not entitled to immunity from such legal action.
In a decision issued last month, Judge Douglas L. Fleming Jr. of the Loudoun County (Virginia) Circuit Court denied a motion to dismiss a Jan. 19. 2021, complaint filed against Tribute at One Loudoun and parent company Cadence Living, according to Virginia Lawyers Weekly. Cadence combined with Cogir Senior Living in late 2022.
According to the complaint, Frances Hamilton moved into Ashburn, VA, senior living community in 2019 and died from complications from COVID-19 on Jan. 19, 2021. The complaint alleged that Hamilton contracted the virus at a Dec. 31, 2020, New Year’s Eve party at the community due to understaffing, substandard care and the community’s failure to follow COVID-19 protocols.
The community moved to dismiss the complaint on the basis that an expert opinion was not obtained by the plaintiff before bringing the wrongful death lawsuit against a healthcare provider as required by Virginia law. The community also claimed emergency COVID-related immunity as a healthcare provider under the COVID-19 public health emergency.
But in his Dec. 4 ruling, Fleming found that assisted living communities are not healthcare providers because they are not licensed as nursing homes or hospitals, nor do they employ licensed healthcare providers to “primarily” render healthcare services. The decision meant that an expert opinion was not required to bring the lawsuit, nor was Tribute at One Loudoun covered under the statutory immunity provided to healthcare providers under the COVID-19 public health emergency.
Fleming denied the senior living community’s motion to dismiss the case in its entirety.
“One only has to look at the statutory distinction between an assisted living facility and nursing homes,” Fleming wrote in his opinion. “[W]hile each facility renders healthcare services, only a nursing home primarily does so.”
Cogir Senior Living told McKnight’s Senior Living it could not comment on ongoing matters.
