38 Trial Lawyer • Winter 2023 Bonnie Richardson By Bonnie Richardson OTLA Guardian Note: The author thanks attorney Marissa Korbel for her assistance with this article. Korbel has been an attorney since 2010 and is currently waiting for her provisional Oregon license. In the spring of 2020, like many of you, I was glued to the news, watching what was happening overseas and reading about COVID-19 and the inevitability of the spread of this highly infectious disease. I turned my attention to my family — my parents who were in their 70s and among the most vulnerable to this deadly virus. Fortunately, my parents were able to stay in their own home. My sister and I sprang into action to make sure they stayed safe and protected. We made sure they were not exposed to others and brought them food and necessities.We wore masks and took precautions to keep them safe from COVID. Vulnerability My parents, you might say, were on one end of the pandemic spectrum — safe and protected in their own home. The residents of the nursing facility Healthcare at Foster Creek in outer southeast Portland were at the other end — in danger and at risk. Foster Creek housed the most vulnerable of all — the elderly, people recovering from severe illnesses, people living with mental illnesses and people completely dependent on 24-hour skilled medical care. The families of those who lived at this facility completely depended on the facility to care for their loved ones. Foster Creek became ground zero for disaster in healthcare for our vulnerable citizens. The COVID-19 infection spread uncontrolled throughout the facility. In a matter of a few months, at least 36 deaths and 119 infections were reported at Foster Creek — a place that held a license for only 114 beds. The Oregon Department of Human Services investigation of Foster Creek ultimately found a slew of problems in the facility, such as employees wearing the same PPE for their entire shifts, employees not washing their hands between interactions with different residents and workers moving between units without observing basic infection control protocols. InMay 2020, the State of Oregon suspended the facility’s license and shut it down, finding it “demonstrated consistent inability to adhere to basic infection control standards” and that its “continued operation poses a serious danger to the public health and safety.” When nursing facilities’ infection and control deficiencies cause the death of people entrusted to their care, our legal system provides the way for families to seek justice by bringing negligence, wrongful death and elder abuse claims. While these claims can never fully make up for the loss of a loved one, our civil justice system provides families with the way to hold these places accountable for unsafe practices that lead to the death of their loved ones. On behalf of several family members who felt helpless as they watched their loved ones die, we filed the lawsuit against Foster Creek and the company responsible for managing care at the facility. See Estate of Judith Joy Jones et al. v. St. Jude Operating Company, LLC dba Healthcare at Foster Creek and Benicia S e n i o r L i v i n g , LLC, Ca s e No . 20CV18218. When we took on this case for our clients, we knew it would be a challenge, mostly because we knew it would be defended with scorched earth tactics, as many of my OTLA colleagues practicing in this area have become all too accustomed to. But our team dug into the law and medicine, and we were prepared, or so we thought. Fighting Immunity in Nursing Facility COVID-19 Litigation
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