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Nursing Homes Face Increase in COVID-19 Wrongful Death Claims

By mid-2021, more than 30 million Americans had tested positive for the dreaded Coronavirus disease – COVID-19 and more than 600,000 had lost their lives. Sadly, according to Bloomberg Law, one-third of the fatalities were loved ones residing in the country’s nursing homes. These trusted institutions have unfortunately become hotbeds for COVID-19 infections and deaths. 

 

Many have even turned to wrongful death suits against the institutions and other long-term care facilities. Although there is no comprehensive database of cases filed, one law firm, Miller & Zois, states that more than 400 nursing homes face legal action.

COVID19 in nursing homes

Preventing the spread of COVID-19 in nursing homes

At the onset of the pandemic, the CDC and CMS issued emergency guidelines. Nursing homes and other long-term care facilities would follow these to control infections and the spread of the virus. Some of the recommendations by the CMS included: 

 

  • Regular screening of residents and healthcare personnel for symptoms.
  • Restriction of visitors, vendors (like barbers), and volunteers, unless it is for compassionate care.
  • Screening and regular monitoring of anyone accessing premises including residents and staff.
  • Canceling group activities and communal dining. 

 

In addition to these guidelines, both the CDC and CMS gave regular updates about the pandemic. 

 

There was sufficient guidance and information about how to limit infection and control the spread. Several nursing homes followed the guidelines, and they had excellent COVID-19 monitoring reports. However, there were many instances where personnel in nursing homes neglected to follow the guidelines or misguided the families of their residents. Consequently, the disease surged in many nursing homes, resulting in unprecedented fatalities. 


 

Taking action

While a huge number of nursing homes did a fantastic job in the face of this terrible disease, there were many press reports about plaintiffs taking action against others. The September 2020 issue of the Risk Management Magazine highlighted several instances of negligence in nursing homes. Accusations ranged from failing to follow required COVID-19 precautions to medical malpractice, “incompetent response to the pandemic,” and gross negligence. 

 

Staffers and management of the nursing homes were on the spot. They were at the mercy of lawyers who were keen on assigning legal responsibility. But that was until the government amended the law. The goal was to shield nursing homes and other long-term care providers and private businesses from lawsuits over coronavirus deaths and infections. 

 

nursing home wheelchair

 

Rescuing the nursing homes

At the urging of nursing homes, the U.S. Secretary of Health and Human Services amended the Federal Public Readiness and Emergency Preparedness Act (the “PREP Act”). The amendment sought to limit state and federal claims against nursing homes. 

 

The changes raised the threshold for taking legal action from “negligence” to “gross negligence.” In other words, plaintiffs had to go beyond showing errors and prove intent to cause harm. The amendments seemed like an excellent cushion for nursing homes already facing an avalanche of negligence and malpractice cases. More than 30 states enacted the changes. 

 

Besides amendments to the PREP Act, regulatory bodies also eased up safety requirements. The CMS waived a series of nursing home requirements and suspended most enforcement actions. In Arkansas, regulators even rolled back minimum staffing stipulations after aggressive lobbying by the industry.

 

Due to these developments, suing nursing homes was much harder. It was like they had immunity against legal action for coronavirus-related deaths. Few attorneys took up new cases, and some turned away existing suits. 



 

Renewed hope for grieving and confused plaintiffs

The amendments to the PREP Act and regulations created significant hurdles for plaintiffs. Although New York had enacted the PREP Act in April 2020, complaints such as one by Rivera Zayas poked holes in the validity of the blanket immunity. Other legal experts have challenged the amendments saying the PREP Act was not a valid defense for nursing home’s failure to take precautions. 

Long before the pandemic, a review by the Special Investigations Division of the House Government Reform Committee found that one-third of nursing homes were negligent. At that time, about 9,000 homes faced legal action against neglect and abuse nationwide.

 

COVID PPE

 

Concluding remarks

While most nursing homes provide an excellent, compassionate service – as with all businesses types- there is negligence prevalent too. Fortunately, some state legislatures have noted this error. Not long ago, the state assembly and senate of New York passed laws repealing immunity granted to nursing homes and other healthcare facilities. This move has encouraged potential plaintiffs and wrongful death lawyers. 

 

Without a doubt, judges will evaluate the merits of each before dismissing it under the protectionist laws.

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