Nursing Home Negligence and Covid-19
By Space Coast Daily // May 30, 2020
According to Austin-based law firm Lorenz & Lorenz, wrongful death means that something neglectful, careless, or unskilled causes another person’s death. A wrongful death might not be intentional, but it occurs because of the reckless decisions or behaviors of someone else.
When you hear that legal definition, it’s tough not to think about what’s happening around the country and the world with nursing homes during Covid-19.
The Covid-19 outbreak has devastated the world, with the death toll reaching 100,000 in the U.S. alone.
The world enacted social distancing measures to stop the spread of the novel coronavirus. While the curve might have been technically flattened in terms of medical capabilities, the virus still spread and left devastation behind.
Much of that spread occurred in nursing homes. The elderly were already especially vulnerable to the effects of Covid-19, with most deaths occurring in people aged 65 and above.
The U.S coronavirus outbreak also started, at least as we know right now, in a long-term care facility—the Life Care Center, located in Kirkland, WA.
As of May 22, 42% of U.S. Covid-19 deaths had occurred in nursing homes and assisted living facilities.
In Minnesota, 81% of the deaths were in these facilities. In New York, nearly 62%, and in New Jersey, nearly 51%.
So what should families and loved ones know about the public health situation as well as potential legal ramifications?
Why Are So Many Covid-19 Deaths in Nursing Homes?
The statistics surrounding nursing homes and long-term care facilities are tough for the world because it’s not only sad and it also leaves questions about the care people receive in these facilities.
Around 2.1 million Americans reside in assisted living facilities, which is only slightly more than 0.6% of the American population, yet they were significantly more affected by Covid-19.
So what’s the reason?
While some of it just has to do with the fact that people in nursing homes and care facilities re inherently more vulnerable because of age and underlying conditions, there are other factors.
In states including New Jersey, New York, and Michigan, nursing homes were required by state mandate to take patients with active infections back into their facilities if they were discharged from the hospital.
The concept was theoretically that then ICUs wouldn’t be overcrowded, but in some states, these mandates continued even once hospitalizations had peaked.
New York Governor Andrew Cuomo said on April 23 that nursing homes couldn’t object to accepting back their patients with active infections. However, Cuomo partially rescinded his order on May 10.
In Florida, on the other hand, Governor Ron DeSantis signed an executive order banning hospitals from discharging Covid-infected patients into long-term care facilities.
Other nursing home-related issues include staff who work at multiple facilities and might spread the infection, and nursing homes not having adequate personal protective equipment.
Nursing Home Negligence
This situation certainly isn’t the first time that nursing homes have been scrutinized. There have been a lot of complaints in recent years, leading the Centers for Medicare & Medicaid Services to start looking into rating the facilities.
Nursing homes have a responsibility to ensure they’re maintaining proper infection control.
For example, the steps nursing homes should take include removing patients and employees who test positive for a contagious disease like Covid-19, reporting confirmed or suspected cases to patients and their families, and limiting outside visitors.
In some nursing homes, there are also reports that staff, afraid of becoming infected themselves, weren’t going into residents’ rooms to check on them. This could lead to other issues of neglect.
If a facility isn’t able to do that, they could be found negligent.
Some families have started taking legal action, including suing nursing homes for abuse, wrongful death, and neglect.
Nursing Homes Ask for Immunity
As they worry about a potential flood of lawsuits resulting from the coronavirus pandemic, nursing homes around the country as well as other long-term health facilities, are seeking temporary immunity from civil suits.
The fact that the nursing home industry has to this point, been successful in lobbying for immunity has many consumer advocates concerned. They feel like it could create further problems for oversight in the industry, which has been known for violating standards for years before the coronavirus pandemic.
Nursing homes say they need legal protection because otherwise, their staff won’t be able to do their jobs.
The president of the American Health Care Association, Mark Parkinson, who represents for-profit nursing homes, released a statement on the subject. He said long-term care workers are on the front lines of the pandemic and they need liability protection to work without fear.
As of May, 18 states have granted long-term care facilities and nursing homes some legal immunity related to the pandemic. It’s either been through laws, or orders issued by governors.
Industry groups have been working in at least ten other states to get similar protections.
This could all lead to more challenges holding nursing homes accountable in the future.
The scope of these liability shields may only stay in effect for as long as there’s a state of emergency in effect.
However, there are certain situations that legal professionals say still wouldn’t be included in liability protections.
For example, if a facility lies about a Covid-19 outbreak or doesn’t follow federal guidelines, they may not be shielded from civil lawsuits.
Many lawyers around the country say they’ve already received numerous phone calls about cases that would meet the standard of gross negligence. In the instance of gross negligence, the case would then be outside the protections of an immunity order.
Even so, with these types of cases, there is a high burden of proof. If you believe your loved one died because of the negligence of a long-term care facility, the best thing you can do is talk to a skilled personal injury lawyer sooner rather than later, to determine what options are available to you.
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