The COVID-19 pandemic has taken a heavy toll throughout New Jersey's nursing homes, killing patients and staff alike. Complicating the matter has been the refusal of New Jersey officials to release a list of the official death count for each residential care facility until last week.

Across the state there have been 1,779 deaths, including 10,500 cases that have tested positive at 450 long-term care facilities. Moreover, all the state's facilities have at least one positive case of the coronavirus.

Texas Lawyer had the chance to speak with Dallas attorney Kay Van Wey recently about nursing homes in the era of COVID-19 and what you can do to protect your elderly family members if they reside in a long-term care facility.

What is going on at New Jersey's nursing homes? Are they responsible for the outbreaks?

Kay Van Wey: We have all seen the media reports of outbreaks in nursing homes. Some of the most vulnerable members of our society have their permanent residences in long-term care facilities. There is wide variability between nursing homes and their corporate owners regarding the degree to which they comply with proper infection control policies.

The gist of it is this: NHs have always had an obligation to have proper infection control processes. The government (CMS and CDC) have provided specific guidance to NHs. In my opinion, that forms the SOC. A reasonable and prudent NH would follow CMS and CDC guidelines. An NH that has an outbreak is suspect for not following the proper guidelines. In order to determine if the outbreak was due to negligence, formal discovery through litigation would likely have to be undertaken to get specific facts and documents to determine whether they were compliant with proper infection control policies and regulations.

I will note that with residents, the causation may be less challenging because if the facility is on lockdown the residents are not leaving the facility and no one other than staff should be entering the facility.

If you have an elderly family member in a nursing home, what should you be doing?

If they can communicate, stay in touch with them daily! If they are able, get them a tablet, iPad or smart phone so you can not only talk to them, but you can see them. If you are able to get an aide to take them near a window and are able to go there, go lay your eyes on them. Do not rely on the nursing home to be on top of any change in their condition or to notify you.

When do you know it's time to seek an attorney?

If a loved one has contracted the virus or a staff member has become infected at a nursing home, they should contact a lawyer. The analysis of whether there is a legal cause of action typically requires some investigation and may require formal discovery during litigation to determine whether the nursing home followed proper infection control policies.

What questions should you ask your attorney if you suspect your family member is at risk or has contracted COVID-19?

Ask them if they have done their CMS mandated self-survey. Ask them for a copy. Ask them if they had any deficiencies and if so, whether they have addressed them. Ask them if any of the residents are currently infected. Ask them if they have had any residents die from COVID-19. Ask them if any of their staff have been diagnosed. You must ask questions to determine if your loved one has likely been exposed.

What can people do to ensure their loved ones are getting the care they deserve in these unprecedented times?

I am sure those with loved ones in nursing homes wished they could bring them home and care for them, but often they are too fragile or their condition is too complex.

What can family members do if they fear things are not being handled appropriately at nursing homes?

Ask the questions we've already discussed and ask to speak directly to the NH administrator. If you still aren't getting good answers, go up the chain. Most NHs are corporate owned. Find out who the regional manager is of the NH and go there, etc. Also, consider making a complaint to TDADS and/or CMS.

Kay Van Wey is a founder and partner at Van Wey Law. She is a board-certified personal injury trial lawyer with over 30 years of experience. She's been named Texas Super Lawyer by her peers for 15 consecutive years and was voted a D Magazine Best Personal Injury Lawyer in 2016 and 2018.