COVID-19: Will Maine’s Long-Term Care Facilities Become Targets for Class Action Litigation?
Long-term care facilities have seen some of the worst of the COVID-19 pandemic since it erupted in March. In Maine, residents of nursing homes and other long-term care facilities make up a large portion of the state’s total cases of COVID-19. Unsurprisingly, given the large number of cases at some of these facilities, they have become a target for class action lawsuits filed on behalf of residents against owners and operators.
For example, a long-term care facility in New Jersey is defending a class action asserting claims of negligence, medical malpractice, wrongful death, and punitive damages.  The lawsuit claims that the Andover Subacute Rehabilitation Center had a COVID-19 outbreak beginning in late March and, as a result, dozens of its residents died from the coronavirus. According to the plaintiffs, the facility provided masks only to registered nurses, but not to others who interacted with residents, and failed to screen visitors and employees for symptoms of the coronavirus. The suit was filed in state court, removed by defendants to federal court, and last month, remanded back to New Jersey state court. 
A very different lawsuit was filed in federal court against a large long-term care facility in New York, the Queens Adult Care Center.  The lawsuit asserts that the facility violated the Americans with Disabilities Act (ADA) and the lesser-known federal Rehabilitation Act, which prohibits discrimination on the basis of disability by those receiving federal financial assistance (for example, Medicaid-funded nursing care). The core allegations are that the facility failed to provide appropriate staffing and take other necessary precautions such that residents were unable to access its services and accommodations without fear of contracting the coronavirus. Among other relief, the lawsuit seeks the appointment of a “special master” to oversee the facility’s health and safety compliance.
The ADA is a somewhat unusual, and likely challenging, vehicle to assert class claims of this type. Plaintiffs’ counsel likely asserted claims under the ADA because traditional tort claims (for example, those asserted in the New Jersey lawsuit described above) are blocked by New York legislation, enacted in April, that grants qualified immunity from COVID-19-related liability for state-law claims.  In any event, we are closely monitoring this litigation.
To date, we are not aware of any class actions related to the pandemic filed in Maine against long-term care facilities. Though New York and a number of other states have enacted some form of liability protection for businesses impacted by the pandemic, Maine has not done so. Because Maine has the oldest population of the 50 states, and its long-term care facilities employ nearly 10,000 people, Maine’s long-term care facilities may well become a target for class actions.
A looming question is whether some form of liability protection will be enacted as part of the next round of federal pandemic relief. The pandemic relief legislation advanced by Senate Republicans, the “SAFE TO WORK” Act  (S. 4317), would allow businesses that are sued in connection with the pandemic to remove their cases from state court to federal court, and would block recovery unless plaintiffs can show gross negligence or intentional misconduct. For personal injury and medical liability cases related to the pandemic, the legislation would cap damages and would raise the standard of proof to clear and convincing evidence. For now, in the absence of either state or federal legislation limiting pandemic-related liability, Maine’s long-term care facilities should be aware that the pandemic presents real class action litigation risks.
 Estate of Joseph Maglioli v. Andover Subacute Rehabilitation Center I, No. 20-cv-06605 (D.N.J. May 29, 2020), since remanded to New Jersey Superior Court, Sussex County.
 No. 20-cv-06605 (D.N.J. Aug. 12, 2020) (order remanding to state court).
 Schoengood v. Hofgur LLC, No. 20-cv-02022 (E.D.N.Y. May 4, 2020).
 The Emergency or Disaster Treatment Protection Act, N.Y. Pub. Health Law Art. 30-D §§ 3080-3082 (2020).
 S. 4317 (116th Cong., 2019-20).