Getting through the Covid-19 pandemic has been difficult, particularly if you have a family member in a nursing home. If your loved one became ill due to nursing home staff errors or negligence, you may wonder if you have legal recourse. More than 1.4 million people live in over 15,500 Medicare- and Medicaid-certified nursing homes across the nation. So, your family is certainly not alone in worrying about this issue.
Legal options are a pressing question if you feel your family member’s Covid case occurred as a result of nursing home staff negligence. A reader wrote in recently with this exact question.
Reader question: “My loved one got Covid in a nursing home because the staff didn’t follow proper precautions. Can I sue?”
Answer: It largely depends on the state where your loved one’s facility is located.
Your State’s Laws Could Make Suing Nursing Home Staff or Facility Owners Much More Difficult
In Florida, for example, suing a nursing home would be very difficult thanks to the March 2021 passage of SB 72. Under this newer law, family members (or residents themselves) seeking to bring legal action against a nursing home for a COVID-19-related injury or death must show:
- Evidence proving a specific individual intended to harm the person who contracted COVID-19, or showed conscious disregard for their life, AND
- Plaintiffs must obtain a doctor’s statement given under oath that supports the claim that the defendant’s action led to the person’s infection.
In addition to Florida, 18 other states passed similar health care shield laws protecting nursing facility owners. But in some states like New York, these “shield laws” have since been repealed. As a result, nursing home cases are now moving forward through that state’s court systems.
IMPORTANT: Given the complexity and continuous changes to nursing home laws around Covid-19, it would be wise to speak to an attorney in your state who specializes in nursing home cases.
Nursing Home Failures Are Widespread in the United States
All people, regardless of their age or disability status, deserve to be treated with dignity, safety, and respect. Access to quality medical care is a big part of this promise. There’s no case where a nursing home should legally be able to harm a resident. That said, Covid-19 affected nursing homes in very large numbers. More than 200,000 residents and nursing home staff members in the United States already died from COVID-19.
This number represents nearly a quarter of all COVID-19 deaths in the country.
According to the White House, failure to comply with federal guidelines at nursing homes is all too common. From 2013 to 2017 in fact, the Government Accountability Office (GAO) found that 82% of all inspected nursing homes had an infection prevention and control deficiency. This includes a lack of regular handwashing among the staff. These issues were found via Medicare and Medicaid surveys.
How Will Nursing Home Guidelines Change Moving Forward?
There are federal protections in place that the current administration is looking to strengthen.
Holding nursing homes accountable for their problems will only happen if Congress agrees to increase funding for the Department of Health & Human Services (HHS) Centers for Medicare & Medicaid Services (CMS). Here are some of the Biden Administration’s outlined goals regarding nursing home safety improvements:
- Increase funding for nursing home inspections. To protect residents and update unsafe nursing homes, increase funding by almost $500 million to support health and safety inspections.
- Increase scrutiny and consequences on more of the poorest performers in the nursing home industry. Facilities that fail to improve may lose both Medicare and Medicaid funding.
- Expand financial penalties for failing to meet requirements. Raise the dollar limit on per-instance financial penalties on poor-performing facilities from $21,000 to $1,000,000.
- Increase accountability for owners of substandard facility chains. Give CMS new authority to require minimum corporate competency in order to participate in Medicare and Medicaid programs.
- Strengthen requirements for on-site infection prevention staff. Increase the standards for nursing homes regarding the level of staffing facilities need for on-site infection prevention employees.
- Enhance requirements for pandemic and emergency preparedness. Plan ahead so nursing homes are better prepared for future health emergencies.
- Integrate pandemic lessons into nursing home requirements. The goal here is work to prevent the events of 2020 from happening again by using what we learned.
Talk to a Personal Injury Attorney for Free
Speaking to a personal injury lawyer is a good option if your loved one contracted Covid-19 in a nursing home. This is a frightening situation, and you may want to protect other residents from suffering nursing home negligence in the future.
Expert help can answer your questions and assess your unique situation. If you’d prefer to talk to a lawyer who specializes in nursing home neglect free of charge, fill out this form today.
Laura Schaefer is the author of The Teashop Girls, The Secret Ingredient, and Littler Women: A Modern Retelling. She is also an active co-author or ghostwriter of several nonfiction books on personal and business development. Laura currently lives in Windermere, Florida with her husband and daughter and works with clients all over the world. Visit her online at lauraschaeferwriter.com and linkedin.com.