Since the U.S. outbreak of COVID-19 in early 2020, more than 51,000 residents of nursing homes and assisted-living facilities have died of the virus. To shore up against an anticipated wave of potentially devastating personal injury and wrongful death litigation, the nursing home industry successfully lobbied for legislation in a number of states that limits liability for negligence. However, the laws did not provide facilities with complete immunity, so lawsuits continue to be filed.
As of early September, at least 55 wrongful death lawsuits have been lodged against long-term nursing care facilities around the country and more are predicted to be on the horizon, according to a complaint tracker.
Laws enacted in New York and other states protect nursing homes from lawsuits based on claims of simple negligence related to COVID-19, such as acts or omissions resulting from a staff shortage while the nursing home was under a declared state of emergency.
In order to prevail in a lawsuit over injury or death, a plaintiff now must prove gross negligence, fraud or intentional and reckless misconduct. This would include a deliberate, wanton and willful disregard for nursing home residents' health and safety. Mere failure to follow a standard of care will not suffice.
Although the necessary level of misconduct is high, it may be proved by examination of a host of indicators, such as:
- Crowding and other distance issues — Did the facility take adequate steps to keep patients apart and to prevent group gatherings that are prone to spreading the virus?
- Personal protective equipment (PPE) — Was PPE available and did the facility try to obtain the safety equipment? Was the staff forced to reuse equipment?
- Restriction of visitors — Did the facility make a good faith effort after the federal government ordered nursing homes to limit visitors? Were residents tested for infection and isolated if they tested positive?
- Transparency — Were family members informed of their loved one's condition or did the facility go out of its way to hide problems and shortages? Any degree of cover-up can help support a claim of willful misconduct.
With first-hand observation by visiting family members cut short, plaintiffs may have to rely on witnesses from inside the facility and medical records. A personal injury or wrongful death lawsuit allows plaintiffs to use the discovery process to answer questions about patient care, from which a pattern of gross negligence may be evident.
Orak & Associates of Pearl River, New York believes nursing home operators need to be held accountable to residents, especially during the pandemic. We can help seek justice for your loved one who was mistreated in a way that led to serious injury or death. Call us at 917-216-8819 or contact us online.