The 36 deaths at Riverbend account for half the COVID-19-related deaths in Wyandotte County.
At least eight lawsuits have now been filed against Riverbend Post-Acute Rehabilitation, the Kansas City, Kansas, nursing home where 132 patients and staff have tested positive for COVID-19 and 36 have died.
Attorneys representing the nursing home on Tuesday transferred all eight cases to federal court in Kansas City, Kansas. They had originally been filed in Wyandotte County District Court.
Defendants are allowed to move civil actions from state to federal court if there’s a basis for federal jurisdiction. In all eight cases, Riverbend’s attorneys invoked the federal Public Readiness and Emergency Preparedness Act, a law that authorizes the Secretary of the U.S. Department of Health and Human Services to issue a declaration in response to a public health emergency.
Such a declaration provides immunity from liability to health care providers who prescribe and administer medications and other measures amid public health emergencies like the COVID-19 pandemic.
Rachel Stahle, an attorney who represents families in four of the eight cases, said she will seek to have the cases sent back to state court.
“This happened in Wyandotte County and should be heard in Wyandotte County by Wyandotte County jurors,” she said.
Riverbend’s attorneys did not return calls seeking comment.
The eight wrongful-death lawsuits were filed on behalf of patients who died at Riverbend. In general, they allege that the nursing home was negligent in how it handled the spread of the coronavirus, that it lacked adequate staff and that it failed to notify the families of the outbreak.
The first lawsuit was filed on April 28 by the wife and daughter of Okey Long, an 87-year-old retired barber who died on April 17. The other lawsuits were filed in the following days by family members of other residents who were said to have died of COVID-19.
The 36 deaths at Riverbend account for half the COVID-19-related deaths in Wyandotte County.
On April 26, Riverbend posted a statement on its website offering its condolences to the families and friends of residents who died of COVID-19.
“Given the novel nature of the virus and the ability of asymptomatic individuals to unknowingly infect others, we believe our team took reasonable actions with the resources and information available to us at the time,” the statement reads.
“Now, to second guess those on the front lines battling a mysterious virus who were doing what they could to save lives, just doesn’t feel like a path to justice,” the statement says. “If that is the route we choose to take, then skilled nursing facilities all across the country will be facing a new crisis that threatens the industry’s ability to minister to those in need of the care and services it provides.”
As of May 21, at least 7,732 long-term care facilities in 43 states were reporting 174,381 infections and 35,118 deaths, or 42 percent of all U.S. deaths attributed to COVID-19, according to the Kaiser Family Foundation.
Riverbend is indirectly owned by The Ensign Group, a publicly traded company based in Mission Viejo, California. The company owns about 225 assisted living, skilled nursing and rehabilitative care facilities in 13 states. It acquired the Kansas City, Kansas, facility in 2016.
In 2019, The Ensign Group earned more than $110 million on revenues of more than $2 billion. In its most recent quarterly filing with the Securities and Exchange Commission, the company said it expected to receive nearly $40 million in federal funds under the CARES Act, the $2.2 trillion relief package passed by Congress to help prop up health care providers and other businesses amid the pandemic.
The action by the Legislature last week, passing a bill that would limit the governor’s authority in health emergencies, has in many ways derailed what the state has been doing to curb the spread of COVID-19, according to Dr. Lee Norman, Kansas secretary of health.
Dr. Norman made his remarks at a news conference this morning sponsored by the University of Kansas Health System.
He said instead of a statewide executive order on health, reopening plans are now left up to individual counties and will be highly irregular and confusing from one county to the next.
Gov. Laura Kelly vetoed the bill passed by the Legislature, and then issued new executive orders applying to the economic health of the state. The state’s Ad Astra reopening plan then became guidance instead of mandatory for the state, and local county health departments were put in charge of their own COVID-19 reopening plans. The Wyandotte County health officer issued a health order to follow the state’s plan, at Phase 2, last week before the legislative vote.
“In reality we have two kinds of counties in the state of Kansas,” Dr. Norman said. There are counties where things are pretty bad, then counties where things are pretty good. From eight to 10 counties have problems, including ones with meatpacking plants, long-term care facilities with problems and prisons, he added.
Dr. Norman said he felt that the measures taken by the state, including closing schools, had been working, and the rates of positive cases, hospitalization rate and deaths were showing a decline. There’s still a lot of COVID-19 out there, he said.
Because of the change from mandatory to guidance in some areas, there definitely could be backtracking that could require a more restrictive situation, according to Dr. Norman.
“The legislative action taken after the session ended,” he said, “will be challenged legally.”
There have been questions about whether the legislative vote that took place after the session was scheduled to end at midnight was legal and was constitutional.
Dr. Norman said the governor stated that the emergency declaration had to stay in place in order to have federal funding and take actions necessary around the state, but allowing the stay-at-home reopening plan to sunset caused a lot of confusion.
“The emergency declaration is still in place,” Dr. Norman said. “That allows us to buy and distribute PPE, to distribute remdesivir, all those many things you’ve seen us doing from the state level.”
The KDHE distributed $53 million of PPE (personal protective equipment) to health care facilities and first responders, and that would be eliminated if the emergency declaration were not in place, he said. Also, 543 Air and Army Guard members would not be able to help without the emergency declaration, as funding for them has to come from somewhere, he said.
The Legislature is scheduled to come back for a session on June 3, to address some of the issues.
The doctors also discussed wearing masks. When asked if the KDHE could require people to wear masks at essential businesses, Dr. Norman said not specifically, but a statute allows him to shut down an unsafe business if health practices are violated. The county health officer also can shut down an unsafe business, he said.
Dr. Dana Hawkinson, medical director of infection prevention and control, said all health care workers and staff at KU Health System wear masks and eye protection. Also, patients are asked to wear masks when coming into contact with people. With the CDC saying that 30 to 40 percent of people may be asymptomatic, people may have COVID-19 and not know they have it, he said.
Dr. Norman said another good reason to wear a mask is that people who have had COVID-19 and think antibodies are present may think they are immune, but the experts don’t necessarily know that. In other diseases, antibodies are protective but it doesn’t mean that people are immune, he added.
Wearing a mask also is important, as the experts are not quite sure yet on whether those who have had COVID-19 before will get another form of it again. Dr. Hawkinson said there were two major types of the SarsCov2 virus originally. There have been possibly 15 to 20 mutations in the genome. As they go through vaccine and drug testing models, it is becoming apparent that maybe they aren’t getting the same disease when they have reinfection with COVID-19, he said. They still don’t know if it’s milder and if people are still shedding the virus if they are reinfected, he said. While sometimes it’s assumed that people should have protection against it, they don’t know that for sure, and how long that might last, he said. As time goes on, with more studies, they may have more answers.
Dr. Norman said they review all death certificates in his office, and especially ones for COVID-19.
“It’s a highly lethal disease,” he said. “It is common.”
There will continue to be a lot of deaths from it, he added.
Dr. Steve Stites, chief medical officer at KU Health System, said the United States passed 100,000 deaths recently for about three months of the disease, which is much higher than a flu season, where about 20,000 deaths could occur.
“What’s scary about it is you may not know when you’re sick, and when other people are sick,” he said.
“Of the infectious diseases that are active in the United States,” Dr. Stites said, “this is the one that should scare us the most, because of the number of people that are dying from it.”
Dr. Hawkinson said COVID-19 is much more deadly than influenza, with more deaths recorded in a shorter time.
“This is not influenza,” Dr. Hawkinson said. “It is much different.”
“Folks want to find safety, and they want to minimize the seriousness of the disease to justify going about a more normal life,” Dr. Stites said. He said he understands that, but it is untrue.
“At some point, you have to accept the truth,” Dr. Stites said. “A hundred thousand deaths in three months, that is not influenza. And if you think it is, you’re not being honest with yourself or your family.”
He said people should depoliticize debates and just recognize what is true.
COVID-19 is more deadly and more sinister, as people don’t always know when they are sick and when others are sick, he said.
Dr. Hawkinson said the COVID-19 case fatality rate is 1 to .5, according to recent information.
Dr. Norman said about one out of every 167 COVID-19 cases is fatal.
Dr. Norman said people have to be vigilant and not let their guards down now that some parts of society are reopening.
He said that people should not accept that a second wave is mandatory. Although pandemics usually act that way, he thinks people should work to prevent a second wave.
Dr. Norman said to keep the state open and safe, people need to understand the principles and not try to skirt the rules.
“There are people who find a rule and find a clever way to skirt around it just because they can,” he said. “That’s the wrong attitude.”
It works to use social distancing, wash hands and wear masks especially when you can’t control your environment, he said.
Dr. Norman said the state’s reopening plan is no longer mandatory statewide in the emergency order, but the KDHE is still going ahead with it and bringing the best data and best recommendations in, so that county by county, officials can make the best recommendations and requirements.
Urgent need for blood donations
Also at the KU Health System news conference, Chelsey Smith, of the Greater Kansas City Community Blood Center, said there is an urgent need for blood donations.
They still have less than a two-day blood supply, and usually they have a seven-day supply, she said.
“That’s cause for alarm,” Smith said.
Some blood drives have reopened in the community, she said, and the CBC’s donor centers are open for donations. They are taking reservations for appointments to donate blood. Walk-in donations formerly were allowed, but now walk-ins depend on how busy the center is, if there is an opening and the capacity.
Dr. Stites said now that hospitals have returned to doing elective as well as emergency surgeries blood is really needed, and a short supply can endanger lives.
Smith said the CBC’s donor sites are probably the safest places for people. Those who are interested in making an appointment to give blood may visit savealifenow.org/coronavirus or call 800-688-0900.
COVID-19 case numbers remain low at hospital
Dr. Hawkinson said there were 17 COVID-19 patients in the hospital on Thursday morning, with six in the intensive care unit and three on ventilators.
The hospital saw a peak at the end of last week. Even though numbers are remaining stable, there have been discharges and new admissions, Dr. Hawkinson said.
Wyandotte County reported a total 1,308 COVID-19 cases and 73 deaths at 10:20 a.m. Thursday, an increase of 32 cases and one death from 1:05 p.m. Wednesday, according to the Unified Government COVID-19 webpage.
The Wyandotte County rolling average of cases and rolling number of deaths continues to be low, according to charts on the UG’s COVID-19 hub.
Test sites open today
Update: Testing sites were canceled on Thursday because of the rain.
A pop-up COVID-19 testing site will be open from 2 p.m. to 6 p.m. Thursday, May 28, at Salem Baptist Church, 1824 N. 11th St., Kansas City, Kansas.
Testing also is ongoing this afternoon at the UG Health Department’s parking lot at 6th and Ann.
On Friday, weather-permitting, testing is scheduled from 10 a.m. to 2 p.m. May 29 at Whitmore Park with the Rainbow Mennonite Church and Rosedale Development Association, 1412 Southwest Blvd., Kansas City, Kansas. To register, call 913-371-9298 and press 1.
Today Dr. Lee Norman, Kansas secretary of health, urged county health officers to monitor their hospital bed capacity diligently.
Health orders are now effective at the county level since the state level plan has become guidance, not mandatory, for the entire state. Wyandotte County health officials adopted the state plan and issued a health order last week making the state plan mandatory in Wyandotte County currently.
Dr. Norman said the Kansas Department of Health and Environment would be working closely with county health officials on monitoring hospital bed capacity.
He said he was extremely disappointed and frustrated by photos and videos showing individuals not practicing health recommendations at the Lake of the Ozarks in Missouri over the Memorial Day weekend. He had urged caution before the holiday. He has asked those Kansans who participated in the Ozarks event without social distancing to self-quarantine.
Those involved have now gone to other counties and probably other states, including Kansas, according to Dr. Norman.
He asked people to use extreme caution and to remain vigilant.
“This virus has not gone away,” he said. While there are efforts to develop a vaccine, “there is no vaccine available.”
What they have done in the past few months has pushed down the infectivity of the virus, but it has not gone away, and will not go away if they continue to show laxity toward it, he said.
“If we see the conduct like we saw at the Lake of the Ozarks, we’re going to see an increase and perhaps a startling increase in the number of cases,” Dr. Norman said.
He urged businesses and organizations to continue to look at the Ad Astra plan for reopening guidance.
“In the next several weeks, we are entering uncharted, experimental waters,” Dr. Norman said. “It will show us how the reopening efforts have impacted disease spread. I predict that some counties in Kansas will fare well, and some will fare very poorly. I don’t like experimenting with people, and I consider this next period of time to be an experiment in disease spread, and how it takes further root in our citizenry.
“Remember, you are your own preparedness. Wear a mask, wash hands often and practice social distancing,” he said.
He, the governor and the Kansas emergency management director are now looking at the possibility of a second wave, he said. They’ve come through a first wave and are showing a progressive increase, he said. The numbers in all three reopening metrics are improving, and if people are diligent, the numbers will continue to improve, he said. Historically, many pandemics have had a second wave.
“We should not assume that we have to have a second wave,” Dr. Norman said. “What we should do is, yes, prepare for a seond wave, and a wave can come in ripples, it can come in a big peak, it can come in multiple peaks.”
They don’t have the ability to predict how a second wave will appear, but they do feel there will be a second wave of COVID-19, Dr. Norman said, especially with laxity in how people attend to the public health restrictions that should continue to be practiced.
One thing they can do is to take a little different look and ask what they can do to make a second wave not occur in the state, he said. That’s what he considers to be his agency’s call to arms, he said.
Dr. Norman reported 9,337 positive COVID-19 cases in 88 counties, with 205 deaths, on Wednesday. This is a cumulative total.
That compared to 9,218 cases, an increase of 119, from 88 counties, with 188 deaths on Monday, May 25, according to KDHE records. Dr. Norman said the 17 increased deaths were due to the way the deaths have been reported, with some of them coming in in bunches.
Dr. Norman said the state continues to monitor 113 clusters. A cluster at Lansing Correctional Facility is starting to see good results from cohorting inmates who are infected away from those who are not, he said. They are retesting inmates who are negative, and that rate is declining, which is an encouraging sign, he said.
Another cluster was from a gathering at Lake Perry in the first week of May, and they are seeing increased case numbers from it, he added.
The state reported the total number of cases in Wyandotte County at 1,315. Counties near Wyandotte County included Leavenworth, which had 1,073 cases, and Johnson, which had 788, according to KDHE.
Ford County reported 1,628 cases; Finney County, 1,417; Seward County, 838; Sedgwick County, 543; Lyon County, 386; Shawnee County, 272; Jackson County, Kansas, 91; Douglas County, 63; and Riley County, 62, according to KDHE.