Before the COVID-19 pandemic, injury victims and family members of nursing home residents could file a lawsuit against the nursing home for negligent treatment that resulted in injury or death. Unfortunately for victims, many states have put into place immunity laws that protect long-term care facilities and nursing homes. Sometimes these laws go too far and fail to protect vulnerable individuals who are taken advantage of by nursing home companies that are focused on profits over people.
You may still be able to sue a nursing home over a COVID death but your case may be much harder to prove. Many of the state laws have an exception for harm caused by gross negligence, recklessness, or intentional conduct. If you have questions about filing a wrongful death claim after a COVID death in a nursing home, contact your nursing home abuse attorneys for more information.
Wrongful Death Lawsuits Against Nursing Homes
A wrongful death lawsuit allows family members to recover compensation after a loved one is killed because of someone’s negligence. A wrongful death claim is similar to a medical malpractice claim but wrongful death involves negligence that ended in death. The injury victim is no longer alive to seek justice but a representative can act in the place of the deceased to hold the responsible parties accountable.
After a wrongful death lawsuit, the estate or the beneficiaries can recover compensation for their losses. Damages in a wrongful death claim can include:
- Funeral costs
- Burial expenses
- Loss of income
- Loss of benefits
- Loss of support
- Loss of parental guidance
- Loss of services
- Emotional distress
Some states place a cap on noneconomic damages in wrongful death or medical malpractice claims. For example, there is a cap on noneconomic damages in a wrongful death claim in Maryland. This means that even if the jury awarded the family a certain award, the judge could reduce the award for any amounts that exceed the maximum award.
In contrast, families of nursing home abuse in states like Illinois, Pennsylvania, and Washington, D.C. do not have to worry about wrongful death caps and can recover the amount awarded by the jury in a wrongful death case.
Proving Negligence in a Nursing Home Accident
Generally, a wrongful death lawsuit involves showing the nursing home administrators or workers breached their duty of care to the patient which was a cause of their death. Negligence in a nursing home abuse case may involve proving that a reasonable person under similar circumstances would not have taken the action or inaction that caused the injury. Negligence can also be shown by violating nursing home laws or procedures.
For example, if a bed-ridden patient requires being turned once every 3 hours based on the health protocols and doctor’s orders, failure to turn the patient regularly may be a breach of the duty of care. If the patient developed bed sores and infections because staff did not follow the repositioning requirements, the staff and nursing home may be responsible for the injuries. If the infections continued to spread and caused the patient to die, the nursing home may have been negligent in causing the patient’s death and be liable for damages.
Neglect in Nursing Homes
Another common problem in nursing homes is neglect. Neglect and abuse occurred in nursing homes before COVID-19 but neglect could have been made worse during the pandemic, with staff avoiding patient contact, failing to provide proper care, or ignoring the signs of serious symptoms of illness.
There are a number of reasons why nursing home neglect is so common. Many nursing homes are understaffed because nursing home administrators are trying to save money. This leaves the remaining staff overworked and often burnt out. There may also be insufficient training and supervision, and underpaid staff may be stressed with the emotional and physical demands of the job.
How Negligence in the Nursing Home Can Cause Death From COVID
The COVID-19/coronavirus can be highly contagious and spread quickly even if carriers are not showing symptoms. COVID can be very serious for older individuals. Older people may be more susceptible to contracting COVID-19 and suffer more serious effects from the virus. COVID-19 is also more serious for individuals with other health conditions, including:
- Chronic kidney disease
- Chronic liver disease
- Chronic lung diseases
- Heart conditions
- Immunocompromised status
- Sickle cell disease
COVID in Nursing Homes
COVID-19 hit nursing homes hard, especially in the early days of the pandemic when there were no vaccine options and the disease was still relatively unknown. Nursing homes often had a number of people together in limited spaces. The residents of a nursing home also regularly came into contact with doctors, nurses, aides, and others who worked in or visited the nursing home.
When employees and administrators in nursing homes are following proper procedures, it could reduce the risk of COVID transmission in nursing homes. Unfortunately, there is a problem with the quality of care older people are receiving in many nursing homes. According to a Service Employees International Union review of Medicare data in California, almost 70% of nursing homes in California did not have and were not implementing an infection control program before the pandemic.
The Centers for Medicare & Medicaid Services (CMS) reviews nursing home facilities based on inspections, staffing levels, and quality measures, and gives the facility a rating out of 5-stars. The health inspection rating is based on the 3 most recent health inspections and complaint investigations. Staffing is based on the number of hours of care provided on average to each resident each day by nursing staff. Quality measures are based on 15 physical and clinical measures for nursing home residents.
Unfortunately, even nursing homes with high ratings can put patients at risk when nursing home staff fail to follow proper infection control procedures. Risks to residents for COVID-19 could include:
- Not having enough staff to care for patients
- Ignoring patient requests for more protective measures
- Not properly using personal protective equipment (PPE)
- Sick staff members showing up to work
- Not providing PPE to residents
- Overcrowding spaces with nursing home residents
- Delayed referral to the emergency room
- Failing to keep family members informed
- Not properly cleaning or sanitizing equipment
- Failure to keep disinfection equipment maintained
Increase in COVID-19 Cases and Deaths in Nursing Homes
According to a survey from the Kaiser Family Foundation, “staff and residents at long-term care facilities were particularly hard-hit by the first year of the pandemic, accounting for 31% of all COVID-19 deaths in the US as of June 30, 2021.”
After the initial vaccine rollout, deaths in nursing homes began to drop. However, as the Delta variant began to spread in the summer of 2021, older individuals, including nursing home residents, again faced a higher risk of death from COVID-19. In August 2021, nursing homes reported almost 1,800 COVID-19 deaths among residents and staff.
Immunity Laws for COVID Deaths in Nursing Homes
With the spread of the COVID-19 pandemic leading to illness and death for millions of people around the world, nursing homes, hospitals, and doctors wanted to protect themselves from legal liability. Early in the pandemic, the American Medical Association (AMA) and Medical Professional Liability Association put out a policy statement asking for broad immunity protection for claims against hospitals and health care providers.
On March 24, 2020, the Secretary of Health and Human Services asked states to provide civil immunity from medical liability for health care facilities for COVID-19 claims and most states enacted some types of liability protection for claims associated with COVID-19.
Under the Coronavirus Aid, Relief and Economic Security Act (CARES Act), there was increased protection against liability for health care professionals during the COVID-19 response.
In general, these laws limit the ability of injury victims and their families to recover compensation for negligence on the part of nursing homes that lead to COVID-19 infection, spread, and illness or death. Family members may have limited options for recovering compensation for COVID-19 deaths in a nursing home that was caused by negligence on behalf of the nursing home staff or administration. However, there are exceptions that can allow families to recover.
COVID Death Immunity Laws in Chicago
In Illinois, Governor Pritzker issued Executive Order 2020-37 in response to COVID-19. The order extended immunity to health care professionals and hospitals for any injury or death related to COVID-19. The protections included “health care facilities,” which provide immunity for nursing homes and long-term care facilities.
The order included 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.” However, there is an exception for any injury or death caused by gross negligence or willful misconduct.
Immunity Laws for Nursing Homes in Baltimore
In Maryland, Governor Hogan issued an emergency health proclamation, the Renewal of Declaration of State of Emergency and Existence of Catastrophic Health Emergency – COVID-19. The declaration included immunity protections for health care providers caring for patients during the pandemic.
“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.”
There is pending legislation that would provide civil immunity from liability for COVID-19 claims, including nursing home deaths, unless the person acted with “gross negligence” or “intentional wrongdoing.”
Philadelphia Nursing Home Immunity Laws
In Pennsylvania, Governor Wolf signed an executive order to provide civil immunity for health care providers, including nursing homes and residential care facilities. The order provided:
“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.”
However, “immunity does not extend to acts or omissions that constitute a crime, gross negligence, or fraud, malice, or other willful misconduct.”
When to File a Nursing Home Wrongful Death Claim
Not all nursing home deaths were caused by COVID. Some cases that may appear similar to a COVID-19 death may have actually been caused by nursing home negligence. You may be able to identify possible signs of neglect or abuse that occurred before your loved one got sick. Signs and symptoms of possible nursing home abuse or neglect include:
- Lack of cleanliness in their living facility, food, or water
- Signs of depression or anxiety
- New destructive behaviors such as self-harm, aggression, or social withdrawal
- Sudden loss of weight
- Expresses fear, loneliness, or neglect by the staff
- Not receiving their medication or medical attention in a timely manner
- Over-medicating residents
No Immunity for Reckless and Wanton Conduct in Nursing Homes
Even if there are immunity laws in your state that limit the liability of nursing homes for COVID-related deaths, those laws generally only cover simple negligence. Some conduct may have been much more egregious or even intentional. Most of the state immunity laws do not provide immunity for gross negligence, willful misconduct, or recklessness. This is a complicated issue and your nursing home abuse attorney can help you understand your rights and options after a loved one dies in a nursing home.
Contact an Attorney After a Nursing Home Death
COVID-19 has hit a lot of people in the country. But a nursing home should not be able to use COVID as an excuse for mistreating residents and failing to provide proper care. If you think a family member died in a nursing home because of abuse, neglect, or gross negligence, you may be able to file a wrongful death claim to recover compensation and hold the nursing home accountable.
Contact experienced nursing home neglect attorneys who can look at your case, answer your questions, and help you understand your legal options to file a claim against a negligent nursing home. Contact Gilman & Bedigian online or at 800-529-6162 for a free consultation.