“Don’t worry, its only the elderly that are dying”. In the last month, I have heard this statement over a dozen times. Today I heard the much more bothersome “boomer remover” when referring to COVID 19. I certainly appreciate the need to feel safe. I understand on a human level that differentiating yourself and your loved ones from those who have died from the COVID 19 virus is a completely natural defense mechanism. Nonetheless, there is something subtle and nefarious about these statements. Something that as a nursing home abuse attorney for two decades I am likely more sensitive to than most. We don’t value the lives of our elderly the way we should. This is not to say anyone is happy about our elderly dying from a virus. Only that it “fits” in our worldview.

In the blockbuster movie “The Dark Knight”, the Joker, played brilliantly by Heath Ledger explains what is happening quite aptly:

You know what I’ve noticed? Nobody panics when things go “according to plan”. Even if the plan is horrifying. If, tomorrow I tell the press that a gang banger will get shot, or a truckload of soldiers will be blown up, nobody panics, because its all ‘part of the plan’.

This is at the heart of what has become a frightening explanation for our apathy toward the elderly in a time of unprecedented fear of deadly virus sweeping the nation. “They’ve lived their life”. “They’re old”. Nobody speaks of the deaths of a dozen nursing home residents in Kirkland, Seattle as a “tragedy”. . . with one notable exception of course – the spouses, children and grandchildren of those who died gasping for air and overcome by illness.

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If you want to know the truth, this isn’t just a response to this virus. It’s not just a self-defense mechanism to soothe ourselves. I know that because I have seen the exact same narrative playing out in our Country every single day for the past 22 years as I sue nursing home and assisted living facilities for abuse and neglect of our institutionalized elderly. I see it in the nasty responses aides and nurses give the families I represent when they complain that their loved one has been sitting in a filthy diaper for hours.

“We are busy ma’am. We will get to her as soon as we can”.

I see it when a resident develops a large open pressure injury that reaches their bones.

“These things happen. She’s old.”

I see it when I am in a settlement conference with a Judge and defense lawyer.

“She was 93 counselor. How much do you think she was worth?”

Unlike most people, however, I also see that small cohort who sees it differently. I see the spouse of 63 years racked with guilt.

“How could I let her down like this?”

I see the daughter who took the afternoon off and didn’t visit that day only to find out her mother fell while she wasn’t there and broke her neck:

“I can’t stop imagining her laying there on the floor in pain waiting for someone to help her while I was at home making dinner.”

I see the son who is haunted by the lack of dignity his dad received in the last days of his life:

“I came in and I could smell him from down the hall. He was comatose, laying in his own feces. It had leaked through his diaper. That’s when I noticed they had two diapers on him so they didn’t have to change him as often. The sore on his lower back was packed with feces. They sent him to the hospital and said he had sepsis. He died that night. I can’t believe I let this happen to him.”

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I am a firm believer that adversity presents opportunity. I’ve seen it throughout my life. People can rise to a higher level of consciousness when the collective is threatened. I saw a Country united after the September 11^th attacks. I saw people disregarding their own health to save complete strangers in Hurricane Katrina. I’ve seen the very best of our country and our world during the very worst of times. I see an opportunity here as well. Admittedly, the world has become much more cold and divisive in the last decade than I ever recall it. I see price gouging on Amazon for hand sanitizer. I see people continuing to buy masks after repeatedly being told that healthcare workers need them (and that they don’t really do anything for you). I see people hoarding toilet paper and sanitizing wipes. We are better than this. This adversity in front of all of us provides us an opportunity. We have an opportunity to care about our neighbors. We have an opportunity to see each other as brothers and sisters in humanity. We have an opportunity to see life- all life, especially the most vulnerable among us, as equally valuable and precious to our own. We have an opportunity to defend our institutionalized elderly with the same passion and love that we extend to our children, siblings, and spouses. We have an opportunity to reconsider what it means to be “old” or “elderly”. To recommit to protecting them, cherishing them and providing for them.

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COVID 19 in a nursing home is a horrifying prospect for every resident and family member of a resident. It’s horrifying for staff. We need only look to the Kirkland facility to recognize this truth. The CDC hasn’t minced words. This is just the beginning. Nursing homes and assisted living facilities across the country are going to be threatened by this deadly virus. The residents at these facilities will have death rates that would make anyone shutter. They will all have the comorbidities that we are thankful our kids don’t have. They will all be in the age cohort that portends the poorest outcome. The greatest danger facing these residents, their families and their caregivers is fear. Fear will terrorize some of these residents who are trapped in a building with sick and dying people. Fear will agonize loved ones who have no choice to remove their mom, dad, husband or wife from a facility. Fear will lead aides who make $8/hour to quit rather than expose themselves to the virus at the first infection within a building.

I feel compelled to make a special mention of the devoted caregivers, nurses, doctors, aides, therapists, and social workers currently working within these facilities. I have spent my entire professional life suing these facilities. I have sat across from some very devoted and caring healthcare providers over those years. Quite often, nursing home abuse and neglect is not actually the fault of the direct caregivers but of a corporation that is leaving them understaffed and overworked. Today, all around our nation brave nurses and aides are punching a clock and walking into a building filled with sick, frail, elderly people. Some of them are coughing. Some of them have fevers. Diapers need to be changed. Dressings on wounds need to be changed. Bodily fluids need to be cleaned up. Temperatures are going to be taken. Soon, reports of the virus within those buildings will appear. Decisions will be made about the risks by these caregivers. They will be asked to enter the building and protect their residents as best they can or quit, find new work for a while and protect themselves. As someone who has spent twenty years watching the often challenging conditions you work in I want to start by saying “thank you”. Thank you for being the front line warriors for our most vulnerable human beings. Thank you. Here is what I ask of you:

• Take care of yourselves and your families. Take precautions to protect yourself.
• Remain compassionate. Recognize the divinity in what you are doing right now. Realize that you are making an impact that cannot be measured with money or awards. An eternal impact. Your life has incredible meaning because of what you are doing right now.
• Try to consider the fear of the loved ones of your residents. Some will misdirect it at you. Love dispels fear.
• Advocate for your residents. If management is not giving you what you need to protect them speak up. Risk the retaliation. Be a hero.

Next, I want to speak to the families of residents in these facilities. The families I represent every single day of my life. I have sat across from you. I have hugged you. I have cried with you. I know how deep your love is. I know how courageous you are. I know how terrified you are right now. Here’s my advice built on 22 years of representing you:

• Be compassionate to the caregivers within the facility. Realize what they are doing. See their sacrifice and love. Support them. Tell them how much you appreciate them.
• Obey the rules of the facility regarding infection control. Don’t come in sick. Wash your hands. Take the precautions.
• Support the other families in your facility. Unite around each other. They are just as afraid as you are. They need your comfort. You need theirs.
• Continue being an advocate. Stay informed. Don’t be afraid to voice concerns but keep your eye on the ball. During this crisis, allow the smaller things to go by the wayside. If it doesn’t directly impact the health or safety of residents suspend the complaints to let the staff focus on the most important part of their job – keeping everyone safe.
• Take care of yourself and your other family members. Find time for self-care.
• Follow the directives to suspend visitation. The virus is not going to spontaneously erupt within a nursing home resident. The virus has to be carried into the facility. There are already plenty of people who go into the world and then come into the nursing home such as doctors, nurses and new admissions. Limiting the number of people who come into the nursing home is the very best way to prevent an outbreak.
• Consider getting your loved one a cell phone or ipad if they are capable and conduct “remote visits”.

Next, I would like to address owners and managers of the facilities. I know I am the last person on earth you want to hear from since I’ve devoted my career to holding you accountable for the health and safety of your residents. I understand you see me as unfair and judgmental. I want to propose an opportunity to you as well:

• Whether you are a 5 star facility with impeccable survey results or a “special focus facility” on the cusp of being shut down – you have an opportunity to stand up and protect our elders. You have an opportunity to be a leader in your field. Take it.
• Spend the money. I’ve often been accused of not being sympathetic enough to the realities that nursing homes and assisted living facilities are businesses and that economics sometimes dictate behavior. I am asking you to be a hero even at the expense of your profit. Your staff is endangering their lives to protect your residents. Give them every weapon they need to do so. Provide the extra staff. Provide the disinfectants. Provide the cleaning crew. Provide the clean linens. Make the new policy.
• Go out of your way to educate yourself on the virus and specifically how a facility like yours can prevent its impact. Do everything you learn and trust that your business will eventually be rewarded for it.
• Go visit your residents. Meet their families. Be a comforter.
• Communicate regularly with your residents and their families. Keep them informed. Anticipate their questions. Be transparent and honest.

Lastly, to the rest of us, I ask you to reconsider how you soothe yourself. Refrain from talking about how its “only the old people” who will die. You have an opportunity as well. An opportunity to re-think how you consider our elderly. An opportunity to value all life. An opportunity to consider the fragility of our relationships in light of this new threat and to cherish, appreciate and respect all of it.

Take care of yourselves and each other.

Joe Musso

ASHCRAFT & GEREL