The families of three residents who were infected with and died of COVID-19 at a Whitefish care center are suing the facility for negligence and wrongful death, alleging its corporate owners failed to establish basic infection prevention criteria during an outbreak of the deadly virus while ignoring sanctions from state and federal regulators.
As a result of the negligence, the lawsuit alleges a total of 13 residents died at the long-term care facility, including the three men on whose behalf family members are seeking damages — Alton Johnson, Berton Pew and Stanley Webber — while dozens of other individuals were infected.
All three men died within weeks of one another, and the lawsuit outlines alleged instances of neglect, abuse, malnourishment, and other forms of mistreatment that led to their contraction of the virus, deteriorating health and ultimate death.
Specifically, the families allege that Whitefish Care and Rehabilitation Center, owned and operated by Sweetwater Whitefish Opco, LLC, failed to establish and maintain a basic COVID-19 infection prevention and control program for an at-risk population of residents, even after a series of complaints led the Montana Department of Public Health and Human Services (DPHHS) and the federal Centers for Medicare and Medicaid Services (CMS) to investigate the facility, leading to warnings, violations and a corrective enforcement plan that went unheeded.
The families also allege the facility “failed to provide adequate and basic personal care to residents during the pandemic, failed to inform resident representatives of the deteriorating conditions inside the facility, and have concealed their neglect behind COVID-19 restrictions,” according to the lawsuit.
Roger Sullivan, a senior attorney with McGarvey Law in Kalispell who is representing the families in Flathead County District Court, said the facility failed its “resident population and their loved ones which has resulted in unnecessary suffering, loss of life, potential lifelong health complications, and other injury as a result.”
“The complaint alleges treatment of elders from our community that is both negligent and a violation of their fundamental right to be treated with human dignity,” Sullivan said.
In Montana and across the nation, nursing home residents have been among the hardest hit by COVID-19, with outbreaks spreading rapidly through the congregant settings and disproportionately impacting vulnerable seniors.
In addition to the lawsuit, the conditions at Whitefish Care and Rehabilitation Center are detailed in a summary of deficiencies by the DPHHS and CMS conducted in late August and early September, while an earlier survey conducted by those agencies in May revealed a host of shortcomings with the center’s infection control plan, as well as its level of preparedness to deal with a COVID-19 outbreak.
Because Medicaid pays for a substantial share of care at long-term care facilities like nursing homes, and Medicare pays for some, CMS sets the standards under which they operate. Under those standards, a COVID-19 Focused Infection Control Survey was performed at the facility in May 2020, and determined that Whitefish Care and Rehab had not implemented the CMS and Centers for Disease Control and Prevention (CDC) recommended practices to prepare for COVID-19.
As one example, the lawsuit describes a period during the outbreak in which 58 residents were living at the facility while new intakes were mixed into the general population, in violation of rules requiring a 14-day isolation period for all new residents.
On Aug. 31, more than two weeks after the first positive case of COVID-19 inside the facility, and after four residents had died, regulators conducted a second survey and documented numerous instances of non-compliance with infection control guidelines, despite the earlier warnings and violations.
The violations reported in the survey included: rooming presumptive COVID-19 positive residents with COVID-19 negative residents; housekeeping staff not following personal protective equipment (PPE) precautions while cleaning COVID-19 isolation and non-isolation facility rooms during shifts; staff incorrectly donning and doffing PPE and entering COVID-19 positive resident rooms without proper PPE; staff either not using N95 masks when necessary, or using them improperly when worn for COVID-19 positive residents; lack of signage or correct signage for infection control precautions for identified residents; incorrect safety precautions used by a resident and outside window visitor; improperly masked COVID-19 positive resident, who had memory deficits, and was within six feet of a COVID-19 negative resident.
In a subsequent “Statement of Deficiencies and Plan of Correction,” prepared by DPHHS and CMS on Sept. 14, the agencies wrote that the facility’s “noncompliance has placed the health and safety of recipients in its care at risk for serious injury, serious harm, and serious impairment or death.”
The lawsuit also names as a defendant Reid Crickmore, executive director of Whitefish Care and Rehab, and accuses him of ignoring complaints, guidelines and agency recommendations and requirements, while allowing the unsafe conditions “to persist until nearly the entire population of residents at the facility had become infected with COVID-19.”
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