Assisted living center sued over virus death
COVID-19 case from College Station facility may be state’s first legal action of its kind
The widow of a man who died of COVID-19 during an outbreak at a College Station assisted living center has filed a wrongful death suit against the facility in what is believed to be the first legal action of its kind in Texas.
Fay Boothe alleges in the suit, filed Wednesday in district court in Brazos County, that the facility
“neglected to provide appropriate essential care” to her husband, Joe, while he was in isolation, leading to his death. Boothe also claims that the facility failed to fully inform the family about the risk of infection from COVID-19 and about his care.
“This is one of the clearest cases of gross neglect I have ever seen,” Boothe's attorney Gaines West said in a statement. “Boothe died because he was neglected and left alone to suffer. The Waterford, which was inundated with COVID-19 issues, and resulting deaths, can no longer hide what they failed to do for the Boothe family, and for many more.”
Joe Boothe was one of 11 residents who have died so far in the outbreak at the Waterford. The facility housed one of the largest outbreaks in a care home in Texas with 32 residents out of 47 testing positive, as well as 13 staff members.
West said he was not aware of any other wrongful death suits filed in Texas against nursing homes or assisted living facilities, whose residents account for 45 percent of the coronavirus fatalities in Texas.
The suit comes as health care facilities in Texas and across the country ask lawmakers for immunity from legal action related to COVID-19. The facilities have won immunity in 14 states — including Connecticut, Illinois, Massachusetts, Michigan, New Jersey and New York — through executive orders and state laws, though some states have carved out exceptions for negligence suits like the one filed by the Boothes.
A representative of the parent company of the Waterford, Dallasbased Capital Senior Living, declined to comment.
In an April 3 letter, several Texas organizations, including the Texas Medical Association, Texas Health Care Association and Texas Hospital Association, asked Gov. Greg Abbott to issue an executive order extending statewide immunity for volunteers responding to the disaster to include health care professionals and facilities.
The law covering volunteers was passed last session and spear
headed by Houston-area, Republican state lawmakers Sen. Joan Huffman and Rep. Tom Oliverson.
On the federal level, there are some protections for suits related to the manufacture and distribution of some medical products, such as ventilators and N95 masks, but none for treatment of patients, said Jon Opelt, executive director of the Texas Alliance for Patient Access, which coordinated the letter.
Groups oppose proposal
Texas advocacy groups for care home residents and others, including the state’s long-term care ombudsman Patty Ducayet, have opposed the proposal, saying it would take away necessary protections for families.
“It would,” Opelt said, “and yet as we have all heard it said: we’re all in this together. And it’s important to recognize that the parties rendering that care are in need of protection as well.”
He continued: “There’s a range of things that could happen where they’re dealing with some serious constraints in terms of their ability to render care, very out of the norm,” such as a hospital that postpones a patient’s elective surgery and ends up delaying care, or a rural hospital that had to ration test kits.
The immunity the organizations are requesting would not cover lawsuits alleging injury or death caused by “reckless conduct, or intentional, willful, or wanton misconduct.”
They also asked in the letter for Abbott to prohibit any coronavirus-related lawsuits against health care providers until Sept. 1. Opelt said that’s because health care workers need to be on the front lines, not sitting in depositions.
“We ask you to take action now to remove the threat of litigation that risks delaying or hindering patient care needed to respond to this disaster,” the letter stated.
Abbott did not respond to a request for comment on whether he plans to act on the request, and Opelt said the groups have not received a response from him.
‘Kept in the dark’
The Brazos County suit claims that the Waterford failed to implement the necessary infection control to protect residents and, once the virus reached the facility, downplayed its severity in speaking with families. For example, the facility at first said a “stomach bug” was going around when it made the decision to restrict residents to their rooms.
“Defendants intentionally kept Mr. Boothe’s family in the dark and away from him, while causing Mr. Boothe to languish and suffer alone, and to wither away, all without appropriate care or intervention,” the suit states.
The suit also faults the facility for waiting to test employees and residents for the virus until after it became public that Boothe and others had died of it.
The Waterford said in a statement provided to Hearst Newspapers last month that it was unable to test all residents and staff at the beginning of the outbreak because test kits were not available. Instead, residents initially were not tested until being admitted to the hospital. Later, they received more kits and were able to expand testing.
The outbreak was first characterized as a stomach bug because facility officials did not associate gastrointestinal symptoms with COVID-19 at that time, it said.
The facility said it followed state and local health authority guidance in combating the spread of the disease.
“At the Waterford at College Station, our top priority is always the safety and wellbeing of our residents and employees,” the statement read. “The Waterford has always had strict protocols in place to limit the spread of infectious disease in our community, and specifically in response to COVID-19.”
Boothe is seeking monetary relief of at least $1 million in damages for the emotional toll her husband’s death, as well as funeral and burial expenses.