Can Nursing Homes Be Sued for Neglect For COVID-Related Deaths?

Nursing Home Neglect

Most nursing home residents have lived in virtual isolation for most of 2020. Yet these individuals still live in fear. Almost half of the coronavirus-related deaths in the United States have been in nursing homes.

According to some, one of the reasons this pandemic is so bad is we are not extremely healthy to begin with. We do not eat well or exercise much, at least in general. Older adults are much more likely to struggle with poor health than younger adults. Additionally, when people get older, their immune systems degrade. So, they are less able to fight off serious infections, like COVID-19.

By now, there are well-established protocols in place which at least slow the spread of this disease. Yet these protocols are often expensive, especially to a penny-pinching nursing homeowner. So, if the nursing home’s conduct fell below the established standard and a resident got sick, a Rockford personal injury attorney can hold the nursing home legally and financially responsible for the victim’s untimely death.

Responsibility for Protecting Residents from COVID-19 in Nursing Homes

In general, partially because of the previously mentioned vulnerable condition of nursing home residents, facility owners have a high duty of care. Moreover, under Illinois law, nursing home residents are invitees. These individuals have permission to be on the land and their presence benefits the owner. In this case, residents pay, directly or indirectly, to live there. Specifically, about coronavirus, this duty of care usually includes:

• Formal and informal testing (administering clinical tests and monitoring for COVID-19 symptoms)
• Strict enforcement of masking and social distancing
• Isolating infected residents
• Enforcing hand-washing and other good hygiene habits, and
• Continually disinfecting surfaces, especially in common areas

Not all these precautions are easy to implement at nursing homes. Masking and social distancing is a good example. Many residents have respiratory, anxiety, or other conditions that make it difficult or impossible to mask. Additionally, many residents might not fully understand the need for social distancing. But facility owners cannot use these difficulties as a basis to take shortcuts. The same duty of care applies.

Establishing Nursing Home Neglect

In addition to theoretical responsibility, victims/plaintiffs must establish practical responsibility. This responsibility usually means a lapse in at least one area. Since coronavirus is so contagious, and older people are so vulnerable, almost any lapse could suffice, even if it is only a minor one.

Assume a nurse allows a resident to break quarantine on her 90th birthday, but “just for a few minutes.” That one tiny lapse puts the entire population of that facility at risk.

These victims must also prove the owner knew or should have known, about the hazard. Direct evidence of actual knowledge might be an outside safety review or an internal surprise investigation. Circumstantial evidence of constructive knowledge (should have known) usually involves the time/notice rule. The longer the hazard existed, the more likely it is that the owner should have learned about and remedied the situation.

Alternatively, the respondeat superior theory could apply. Employers are financially responsible for damages if their employees are negligent. The previously mentioned quarantine breach is a good example. The nurse was negligent, even if she/he had good intentions. So, the owner is financially responsible for the victim’s damages.

In a wrongful death claim, these damages normally include compensation for pecuniary losses, such as funeral and burial expenses, medical bills, and lost future financial and emotional support. Survivors might also be entitled to compensation for their own grief and suffering.

Count on an Experienced Nursing Home Abuse Attorney

Nursing home coronavirus deaths are usually not “accidental.” For a free consultation with an experienced Rockford personal injury lawyer, contact Fisk & Monteleone, Ltd. We routinely handle matters in Winnebago County and nearby jurisdictions.