Street view of the Life Care Center of Kirkland building, ground zero of the coronavirus outbreak in Kirkland.

With its exponential impact on the elderly, the coronavirus outbreak has hit nursing homes particularly hard. In the state of Washington, for example, 29 residents of Life Care Center of Kirkland near Seattle, Washington, died after a COVID-19 outbreak at the nursing home. So far, families of those who have died or gotten sick from COVID-19 at nursing homes have not filed lawsuits. But, on March 9, the U.S. Centers for Medicare & Medicaid Services issued guidance related to the novel coronavirus, putting nursing homes on notice, said Michael Brusca, a partner at Davis & Brusca in Princeton, New Jersey, and a member of the American Association for Justice.

This interview has been edited for length and clarity.

How prepared are nursing homes for an outbreak like this?

Nursing homes from Washington state to New Jersey all have to follow the same federal regulatory requirements because they accept Medicare and Medicaid patients. The federal regulations are broken out into individual parts called F-tags. That's how everyone in the industry refers to individual federal regulations. And there is a specific F-tag for infection and control programs.

Is COVID-19 different from other nursing home illnesses?

The coronavirus is a little different in that the CMS has issued, as of March 9, their own memorandum specific to the coronavirus, and a lot of it is focused on who you are allowing to come in and restrictions on allowing people to come in. In fact, when you look at the memo, the guidance for limiting the transmission of COVID-19, the first point is, how should facilities monitor or restrict visitors? That's going to be important because facilities know they have to look at these CMS directives. Candidly, there hasn't been a lot of guidance from the top, so to speak, but this is the guidance.

Could there be lawsuits against nursing homes over COVID-19?

It's possible. I don't fault a nursing home when someone gets an infection. Old people get infections. The issue you are looking at is, how did they respond to the infection? Did they have the proper policies and procedures in place, and did they have a proper infection control program, and did they follow the federal regulations? It's hard because nobody's really sure.

What are some examples of those procedures?

One thing is when understaffed facilities are using licensed nurses or licensed practicing nurses as if they were registered nurses. The problem with this is, at least in my state, and many other states, LPNs are not legally allowed to conduct physical and cognitive assessments. If people get sick, and nothing's getting done because they don't have enough registered nurses conducting physical assessments, this person is really sick. I have a ton of cases where the family is demanding mom or dad be sent to the hospital, and sometimes, they get resistance.

What claims do lawyers bring against nursing homes?

Your theory is negligence. If I had a family who called me and said, "My dad died of coronavirus," I would look at and see the nurse's notes. What was his condition the last four to five days or longer? Was there something clear here that would have triggered a call to the doctor? You'd get the call and have to get the medical records and have to find out, did they follow the F-tag infection control? I find that sometimes you may have a case where someone died from the infection, but even if the nurse followed all the rules, the outcome would be the same. That may be an issue with COVID-19.