There has been a lot of conversation about nursing homes in the news in the past few months and even the last year.
Nursing homes were one of the initial places in the U.S. where we saw a significant impact from COVID-19.
Now, there are stories coming to light where people were put into nursing homes and possibly infected other residents. In the state of New York, there is currently an ongoing investigation about the handling of COVID-19 in nursing homes.
This brings up the question for some families about what legal recourse is available if your loved one is injured or dies in a nursing home. Can you sue these facilities? The following are some of the important things to know about this topic.
COVID-Specific Lawsuits
First, before going into other topics that relate to suing a nursing home, what about suing because of the specific COVID issue?
There are a growing number of negligence lawsuits being filed around the country against long-term care facilities by families whose loved ones died because of the virus.
There are varying protection statuses for nursing homes and care facilities, however, depending on the state.
There will be a lot of previously unfaced issues in these situations. Judges and juries will have to decide how to assign responsibility for deaths among nursing home patients, who are the most medically fragile groups. Many of the deaths also occurred in the early days of the pandemic when a lot wasn’t known or understood, and operators of nursing homes were facing an unprecedented situation.
A number of not just residents but also nursing home employees died of the virus or related complications.
When it comes to employees who may have contracted the virus on the job and then died, those cases may be handled through workers’ compensation systems.
Around 26 states, which include New York, New Jersey, and Michigan, have immunity provisions that protect nursing homes and long-term care facilities from negligence lawsuits that arise because of the pandemic.
There is immunity in these states for acts that happened after the initial public emergency orders were put into place in March 2020, but not before.
What About Nursing Home Abuse?
Beyond the COVID issue, what about suing nursing homes for abuse or neglect?
There are two types of civil lawsuits that might be brought forward against a nursing home. There’s tort, and then there’s breach of contract.
Tort lawsuits help recover compensation for harm the defendant caused, which would be the nursing home.
A tort lawsuit might be due to abuse, when someone in the nursing home intentionally abused the resident of a nursing home, or because of medical malpractice.
Other situations that could fall under a tort lawsuit classification against a nursing home include neglect, which is also considered a form of abuse when someone doesn’t live up to their duties to care for an individual who can’t care for themselves, as well as negligence.
Wrongful death claims could be brought forward when a resident of a nursing home dies because of the intentional harm or negligence of someone else.
In tort cases, for them to be successful, the plaintiff has to show that the defendant not only did the harmful act but that they caused harm to the victim in doing so.
Nursing homes have extensive liability insurance for these cases.
Another type of lawsuit that can relate to nursing homes and the care they provide is a breach of contract lawsuit. These could be brought against a nursing home if the family of a resident felt that the facility did not provide the care they agreed to.
In this case, the lawsuit is against the nursing home directly, rather than their insurance.
Behaviors That Trigger a Civil Lawsuit
There are a lot of specific behaviors that can trigger a civil lawsuit as it relates to a nursing home.
For example, negligent supervision is one type of behavior, as is a failure to keep up with appropriate health and safety requirements. Negligent hiring is another. If a nursing home facility doesn’t do a thorough background check on a potential employee who has a history of violence, for example, that could lead to a civil lawsuit.
With all this in mind, while it is possible to sue a nursing home, it’s difficult to show liability. Even if your loved one was hurt, became ill, or even died in a nursing home facility, proving liability is a big challenge, which is where a personal injury lawyer becomes an important asset.
