- Compensation for Nursing Home Workers Infected by COVID - October 26, 2020
- Phase 3 of Provider Relief Funding Announced - October 19, 2020
- Issues Related to Disabled People with COVID in Group Settings - October 12, 2020
By Jessie Arnold
Nursing home abuse was rampant even before Covid. We worry about ourselves and our loved ones in situations where we feel less than powerful. We depend on nursing homes to consider our conditions, our overall health, and how to take care of large numbers of people in a single institution.
Previously, we talked about some of the acts of negligence on the part nursing homes that led to illness and even death due to the novel coronavirus, or Covid-19. Some of these include failure of sanitation, failure to separate ill patients from the general population, and failure to monitor sick staff that might spread the virus from facility to facility. Other forms of negligence might be failure to provide appropriate care for Covid patients and failure to manage underlying risky conditions. 42-50% of all Covid deaths have been patients in nursing homes. So far, studies have indicated that deaths were worse in facilities that had previously shown failure in sanitation.
Immunity for Nursing Home Abuses
Over half the states have extended some kind special protection to nursing homes from injuries due to coronavirus injuries and deaths, despite the fact that some of the deaths are likely due to failures of sanitation in nursing homes that existed before the virus. Attorneys and legal scholars worry about the precedent of carving out random circumstances where individuals are not liable for their negligence acts, especially given the rampant abuse in nursing homes. The states that have extended these protections so far include New York, Massachusetts, New Jersey, Connecticut and Michigan, and the list is growing quickly.
These orders or laws often raise the level of negligence necessary to bring a claim to gross negligence, or require reckless or willful negligence. Nursing homes seem to have taken a public health crisis as an opportunity to weaken liability for poor care overall, and are trying to limit their liability for all negligence and nursing home abuse that occurred during the period of active pandemic, not just for actual Covid injuries and deaths.
Senate Majority Leader Mitch McConnell has indicated that he will require broad immunity for businesses including long-term care facilities before any future Covid relief bill is considered. Although certain racial minorities and disabled patients have disproportionately been injured by Covid, it seems Congress may preclude discrimination suits that often lead to systemic changes.
The immunity provided by governors or states legislatures often provide that immunity is limited by the period during which a public emergency has been declared. Furthermore, some legal experts argue that the nursing home’s failures—of sanitation or management—began before states issued emergency orders, they should be entitled to protection under these new orders and laws. The scope and length of the immunity offered by legislation or executive order varies. You should consult a lawyer to see if your injury falls outside the scope of these protections.
There are a few forms of intervention for negligent acts in nursing homes. The first step might be investigation by adult protective services. According to the National Adult Protective Services Association, “APS helps by assessing each individual’s unique needs, then developing a service plan to maintain his/her safety, health, and independence.” In some cases, criminal prosecution might be warranted. Historically, though, many cases are resolved through tort claims, civil causes of action for damages. These claims, discussed at length below, provide damages to patients or their families.
What is a Negligence Claim in Nursing Home Law
If your attorney thinks you can bring a lawsuit, here are some things you should know about a negligence claim.
A negligence claim can stem from acts and failures to act on the part of a nursing home. In all of these cases, the plaintiff, that is, the person suing, must prove a duty from the nursing home to the injured person, and a breach of that duty of care. One form of negligence is negligent personal supervision and care.
Another form of negligence in nursing homes is negligent hiring and retention of employees. How will this be applied regarding Covid-related injuries? Will knowingly maintaining staff that was working at multiple facilities will be deemed negligent? Also, negligence might be found in retaining staff sick with Covid. In that case, can the nursing home be sued for failing to test staff members? What about allowing them to work while the results were yet to return?
A third tort is negligent maintenance of the premises: although the most dominant way of spreading the virus is airborne, it remains to be seen whether there will be lawsuits for failure to sanitize the facilities and provide adequate ventilation.
How Your Lawyer Will Help you to Prove Your Negligence Claim Against a Nursing Home
As stated above, you will need to prove that the nursing home owed you a duty of care. Your lawyer is likely to hire an expert who will speak to proper practice in a situation. Some forms of negligence may seem readily apparent to a jury, Covid may be seen as a novel situation, and there are liable to be heated arguments around the specifics of what duty was owed.
The government’s actions and lack of guidance or conflicting guidance about best practices complicates this duty, as well as the fact that the government dumped ill patients in nursing homes without proper regard for whether the nursing homes were equipped to safely treat the patients. Attorneys may try to draw parallels to other infectious diseases, but an expert may need to explain why they are apt.
Federal and state statutes establish the minimum standard of care that is expected from nursing homes.
It is not enough to show that there was a breach of a duty of care. For a lawsuit to be viable, the plaintiff must show that there was an injury, and the breach of the duty of care must have caused the injury.
Causation and Pre-existing Conditions in Nursing Home Negligence Cases
Pre-existing conditions greatly increase the risk of death in Covid cases, and elderly people are more likely to have some of these conditions including diabetes, high blood pressure, and even increased weight. In the case of a death from Covid it is likely that defendants will want to argue that these pre-existing conditions and not a breach of care from the nursing home caused the death.
The common law should preclude the success of these arguments. The fact of a pre-existing condition has often been used as a defense in the case of nursing home negligence and abuse before. In law, there is a rule called the “eggshell skull” rule that states that the defendant takes the victim as he finds her. What does that mean? In a non-covid case, it might look like this: a grocery store has a hazard that causes a shopper to trip and fall. The shopper has a pre-existing back condition that the fall exacerbates, and the shopper cannot walk after the injury. The grocery store might want to argue that they couldn’t have known a shopper would have such a condition and that any other shopper would have only suffered minor bruises from such a fall. The law disagrees, and says you can’t pick your victim. If not for the fall, the shopper could walk. You take your victim as you find them.
Nursing home negligence law is consistent with this common law rule. Therefore, it’s fair to say that nursing homes have to anticipate that their patients have pre-existing conditions. If they are negligent and the patient is injured from covid, for example with permanent lung damage, the nursing home shouldn’t be able to argue that if not for the patient’s asthma, they would not have been in as much danger.
There are strict statutes of limitations, that is time limits on how long you have to file a lawsuit after an injury, so it is a good idea to contact an attorney right away if you think you or a loved one have been a victim of any nursing home abuse or negligence.
Damages for injuries from Covid due to nursing home neglect
Damages will vary according to the case but include:
– Pain and suffering
– Medical expenses
– Lost income for carers
– Mental trauma
– Permanent physical injury
– Loss of life enjoyment
A Word about Gross Negligence in Nursing Home Cases
Now that you understand ordinary negligence, we can consider gross negligence for a moment. As discussed previously, in some states executive orders or legislation is limiting lawsuits to cases of gross negligence. (Some states are using some terms interchangeably right now, like reckless or willful.) Gross negligence is a severe form of negligence. It is more than carelessness or inattention, often described as extreme indifference to or reckless disregard for the safety of others. Emerging cases are testing whether some the acts or omissions by nursing homes may be gross negligence. The disregard for the health and safety of others described by the case law on gross negligence is liable to be applied to the acts and omissions by the nursing homes who are responsible for injuries and deaths.
Some of the cases claiming gross negligence right now are pointing to nursing homes forcing symptomatic employees to go work, ignoring government or doctor advice on isolation, not following infection protocols, failing to provide infection preventing PPE to staff, and failing failure to transfer a severely ill patient to the hospital.
In one case, workers attended a company conference in New York at the height of the outbreak, and were not required to quarantine but allowed to return straight to work. The case alleges that managers covered up staff exposure to Covid.
Another case in San Antonio alleges gross negligence where employees admitted the facility was unprepared. The employees are said to have not exercised proper hand hygiene, implemented an effective infection prevention protocol, and were systematically understaffed in order to provide greater profits. There 14 ways the nursing home was allegedly grossly negligent, including a failure to identify the patient’s medical condition or to transfer him to a higher level of care.
Multiple cases allege that nursing homes either failed to identify how sick patients were or lied to the family about the illness, and willfully failed to provide appropriate escalated care.
Conclusion: Remedies Remain for Nursing Home Negligence
There are remedies for nursing home abuse. Despite the lobbying on the part of the nursing homes and the capitulations of governors and state legislatures, you may still have a claim for negligence or gross negligence. Your attorney can work with you to determine state law.