A medical malpractice lawsuit allows injury victims and their families to recover damages for negligent medical care that caused an injury. In a nursing home malpractice claim, the injury victim may be able to file a lawsuit against the facility for negligent care that resulted in harm. However, recovery for COVID-related injuries may be restricted by state orders that give immunity to health care workers for claims related to the coronavirus.
The novel coronavirus swept across the United States, and much of the rest of the world, in 2020 and 2021. Within months of the first cases being discovered in the U.S., it was declared a national emergency and began to take the lives of thousands of people. According to the Centers for Disease Control and Prevention (CDC), as of July 2021, more than 600,000 people in the U.S. died from COVID-19.
If a nursing home resident became injured or sick because of neglect in a nursing home, the patient may be able to recover damages. However, injury victims may find challenges trying to recover compensation for injuries caused by COVID because of state immunity laws. Talk to an experienced medical malpractice attorney about your legal rights after a malpractice injury.
Elderly Are More Vulnerable to COVID-19 Injuries
The Centers for Medicare & Medicaid Services (CMS) tracked the impact of COVID-19 in nursing homes. As of July 2021, there were more than 650,000 confirmed cases of residents contracted COVID-19, resulting in more than 133,000 deaths. To show the disparate impact, more than 580,000 nursing home facility staff had confirmed COVID, resulting in less than 2,000 deaths.
Deaths and serious injuries among nursing home residents were much higher than other groups because the disease has a greater impact on the elderly and people with underlying health conditions. Many older people have compromised immune systems and cannot fight off the virus as well. According to the CDC, the risk of death increases by age group, compared to the reference group of 18 to 29-year-olds.
|Age||Rate of Hospitalization||Rate of Death|
|50 to 64 years old||4 times||35 times|
|65 to 74 years old||6 times||95 times|
|75 to 44 years old||9 times||230 times|
|84 years old and older||15 times||610 times|
Older people may also be more likely to have a number of other health conditions or comorbidities. Several common conditions are likely to increase the risk of hospitalization or death when the patient contracts COVID-19, including:
- Respiratory failure
- Hypertensive diseases
- Vascular disorders
- Heart failure
- Cardiac arrest
- Cardiac arrhythmia
- Chronic lower respiratory disease
- Renal failure
How Bad Practices Contribute to Nursing Home Injuries
Older adults may be more at risk of certain types of injuries but there is no excuse for avoidable accidents. When a nursing home doctor, nurse, or other staff member fails to provide the standard of care, which causes an injury to a resident, resulting in harm, it may be a case of medical malpractice. Health care providers have the training, experience, and education to know what they are expected to do and how to respond to accidents or health concerns.
Unfortunately, not all care providers take the necessary measures to provide proper care. Some common causes of accidents, injuries, and infections in nursing homes include:
- Inadequate staff
- Lack of proper training
- Lack of supervision
- Staff acting outside their scope of practice
- Failure to take proper sanctuary measures
- Ignoring alarms or calls for help
- Not turning bed-bound patients regularly
- Failure to properly wash and clean residents
- Overmedicating patients
- Theft of pain medication
- Allowing residents to be alone with other residents with a history of physical or sexual abuse
Nursing Homes Failed to Take Proper Protective Measures
One of the most common causes of COVID infections in nursing homes was caused by lack of proper protective measures. Even in the early days of the COVID outbreak, health officials were emphasizing hand washing, wearing masks, limiting exposure in small spaces, social distancing, and quarantining infected patients. Unfortunately, many nursing homes failed to take even the most basic precautions.
Much of the failure in nursing homes was due to administrators ignoring concerns, directing staff to disregard guidelines, or out of primary concern for profit over patient safety. Protective measure failures included:
- Failure to follow CDC guidelines
- Failure to implement PPE procedures
- Failure to enforce mask-wearing
- Failure to provide protective equipment to workers
- Failure to put into place social distancing measures
- Failure to provide disinfection routines
- Requiring sick employees to come into work
- Failure to separate infected patients from uninfected patients
- Failure to inform family of outbreaks
- Failure to conduct contact tracing
- Preventing employees from reporting safety hazards
Continuing Health Injuries After COVID
COVID has much more serious health complications compared to a cold or flu. Even after recovering from the coronavirus, many patients report long-term effects. In some cases, there is permanent damage from a COVID-19 infection, including damage to the lungs, heart, or other organs. Reported “long-COVID” symptoms that continue for months after recovery may include:
- Memory problems
- Muscle soreness
- Loss of smell or taste
State and Federal Immunity for Health Care Providers During COVID
If the negligence caused victims to contract another disease, patients may have a greater chance of recovering compensation. However, the state and federal immunity laws put into place have given broad immunity to health care providers, to avoid legal liability for injuries related to COVID. Many COVID claims could be denied under a state of emergency laws or executive orders directly related to COVID.
On March 24, 2020, the Secretary of Health and Human Services urged states to provide civil immunity from medical liability for health care facilities for claims related to COVID-19. Most states enacted some additional liability protection for the risks associated with COVID-19.
Under Federal law, the Coronavirus Aid, Relief and Economic Security Act (CARES Act) included language to provide additional liability protections for health care professionals during the COVID-19 response.
Maryland Legal Immunity for Nursing Homes
In Maryland, Governor Hogan issued an emergency health proclamation aimed at extending immunity to health care providers. The Renewal of Declaration of State of Emergency and Existence of Catastrophic Health Emergency – COVID-19 was issued shortly after the outbreak, and provided:
“Health care providers who act in good faith under this catastrophic health emergency proclamation, including orders issued under the proclamation by the Governor and by other State officials acting at the direction of or under delegated authority from the Governor, have the immunity provided by § 14-3A-06 of the Public Safety Article of the Maryland Code.”
Pennsylvania Health Care Immunity
In Pennsylvania, Governor Wolf signed an executive order to extend protections to health care workers for good faith actions taken during the COVID-19 pandemic. The broad immunity protections granted:
“immunity to any individual who holds a license, certificate, registration or certification to practice a health care profession or occupation in Pennsylvania and who is engaged in providing COVID-19 medical and health treatment or services during the COVID- 19 disaster emergency response. Immunity does not extend to acts or omissions that constitute a crime, gross negligence, or fraud, malice, or other willful misconduct.”
Illinois Immunity Laws for Health Care and Nursing Homes
In Illinois, an Executive Order was issued in response to COVID-19, which extended immunity to health care professionals and hospitals for any injury or death related to COVID-19. This extended immunity from “civil liability for any injury or death alleged to have been caused by any act or omission by the hospital or health care professional, which injury or death occurred at a time when a hospital or health care professional was rendering assistance to the state in response to the COVID-19 outbreak”
Other Nursing Home Negligence Not Caused by COVID
Some nursing home injuries are not covered by the civil liability laws. If the injury is unrelated to COVID or the health care professional was not responding to the COVID-19 outbreak, a doctor may still be liable for nursing home negligence or abuse. In some cases, even if an injury did involve COVID, the protections may not apply if the injury or death was caused by:
- Gross negligence
- Willful misconduct
- Would otherwise constitute a crime
Victims of nursing home neglect and nursing home abuse may still be able to file a claim to recover damages, even if their mistreatment occurred during the COVID-19 pandemic. Abuse can take a number of forms, including:
- Physical abuse
- Sexual abuse
- Emotional abuse
- Psychological abuse
- Financial exploitation
When a nursing home facility fails to take proper safety and sanitary measures, it can spread disease, infection, and viral outbreaks. Unfortunately, nursing home negligence that caused COVID-19 viral infections may be more difficult to prove. There may be problems showing causation, the source of the exposure, or who were carriers of the virus because of the long incubation period.
However, the same failures that lead to the spread of the coronavirus can also be responsible for the spread of other viral, bacterial, or fungal infections. Healthcare-associated infections (HAI) are infections that are transmitted in a health care facility, like a hospital, clinic, or nursing home. Causes of HAI injuries may include:
- Failure to properly clean and sanitize equipment
- Failure to properly train and supervise staff
- Lack of cleaning equipment
- Re-using disposable medical instruments
- Failure to disinfect
- Health care workers coming to work when they are sick
Signs of Nursing Home Abuse or Neglect
Elder abuse can go on for years without being reported. The elderly victim may not have much family left or the family live out of state and are unable to visit regularly. Even with close family nearby, relatives may not recognize the signs of abuse or neglect and simply attribute any problems to old age. If you suspect neglect, you should report it to law enforcement or the proper state agency.
Signs of possible abuse or neglect may depend on the type of abuse. Physical signs of abuse or neglect may include:
- Bruising around the neck, face, or wrists
- Resident appears overly sedated
- Resident is tied down or restrained
- Sexual abuse may involve bruising around the breasts or groin
- Pressure sores or bedsores
- Unexplained weight loss
- Left lying in urine or feces
- Lack of sanitary conditions
There may also be emotional signs of abuse that indicate the resident is being mistreated or neglected when left alone with nursing home staff or other residents. Emotional changes may include depression, confusion, sudden changes in mental status, withdrawal, increasing hostility or anxiety, loss of interest in activities they previously enjoyed, or appear frightened when around nursing home staff.
It can be difficult to deal with suspected abuse. Family members or friends may not have any evidence of abuse and are hesitant to report it because it is such a serious allegation. Even the victim may deny they are being abused or mistreated. However, the elderly residents are in a difficult position because they risk retaliation from abusive staff if they report problems.
How Can a Nursing Home Abuse Lawyer Help?
A nursing home abuse lawyer can put a stop to the abuse, hold the negligent offenders liable for their actions, and help the victim and the victim’s family recover financial compensation. Compensation in a nursing home abuse lawsuit includes damages caused by the mistreatment. Damages can include:
- Medical care
- Future care in a proper facility
- Pain and suffering
- Loss of enjoyment
- Emotional distress
When a nursing home is failing to protect one resident, they may be mistreating others. Filing a medical malpractice claim or personal injury claim against a negligent nursing facility will not only protect the victim, it may prevent others from facing similar injuries in the future.
An experienced nursing home malpractice attorney can review your case, get an expert review, and help you understand your legal options to file a claim against the nursing home, caregivers, and negligent doctors. Contact experienced trial attorneys who have successfully represented nursing home negligence victims and their families to recover financial compensation. Contact Gilman & Bedigian online or at 800-529-6162 for a free consultation.