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Does a Pandemic Excuse Nursing Homes from Being Sued?

Posted by Christopher Keller | Jun 09, 2020 | 0 Comments

Since the pandemic started, analysts have scrambled to identify trends in its progress. One of the most heartbreaking trends is COVID-19's attack on the elderly. Here in the United States, one-third of our coronavirus deaths have been those who were living or working inside a nursing home facility. At over 28,000 nursing home deaths, it is no surprise that loved ones are now questioning whose responsibility it was to keep these people safe.

Granting Immunity to Nursing Homes from Lawsuits

Nursing homes have been hit hardest due to the demographic of their residents and the close proximity in which they live. The classic argument here is that no one intended for these residents to die, and the workers who are there have been doing everything they can to take care of the residents. Many believe no one should be at fault because the pandemic is something they could not have anticipated or properly planned for. Had the entire world not had to deal with the same virus at once, nursing homes would have been better equipped to meet the needs of residents and workers. Some lawmakers, like Mitch McConnell, are drafting legislation to keep individuals from suing the nursing home industry. In fact, over 15 states have already approved some version of immunity from these lawsuits. 

Why is Granting Immunity to Nursing Homes Problematic?

Nursing homes across the nation were losing money at rapid speeds before the pandemic hit. There are for-profit and non-profit nursing homes. For-profit nursing homes are privately owned and have been known to put shareholders' needs before the needs of the residents. Studies show that for-profit nursing homes have the lowest staffing rates for registered nurses and they are generally cited for more violations at a higher rate than non-profit homes. 

Non-profit nursing homes do not have the stigma of big business attached to them. They may not have the same funds as for-profit homes, but they have proven to have the following benefits

  • Performed better on most measures than for-profit facilities in the state;
  • Had fewer residents using antipsychotic drugs or with physical restraints;
  • Had lower hospitalization rates, and more discharges to home;
  • Had more nursing staff and fewer survey deficiencies and spent more money per day on nursing costs and food. 

Granting blanket immunity from lawsuits is problematic when dealing with nursing homes because over 70% of them are for-profit companies. Studies show for-profit nursing homes were already struggling to provide appropriate care before the pandemic and that the residents have not traditionally been the top priority. To grant blanket immunity now would mean these companies would have all of their dangerous short-comings excused by the devastation of the pandemic when, in reality, better care could have easily been given to those residents ahead of time had they simply made that initiative a priority from the beginning. 

Mike Dark, a California Advocates for Nursing Home Reform attorney, explained it best: “What you're really looking at is an industry that always wanted immunity and now has the opportunity to ask for it under the cloak of saying, ‘Let's protect our heroes.' This has very little to do with the hard work being done by health care providers and everything to do with protecting the financial interests of these big operators.”

If You Lost a Loved One in a Nursing Home Because of COVID-19

A lot of families are suffering right now because of their loss of relatives that were nursing home residents. It is understandable that they would demand answers and want justice for a death that could have been prevented. The quality of care given to nursing home residents is not a new topic of discussion. It has been brought into question repeatedly, especially with the majority of nursing homes being bought by private-equity firms and re-sold or leased out for major profits. As for the argument that no one could have anticipated a pandemic, this is not necessarily true. 

Tobias L. Millrood, president-elect of the association of trial lawyers, writes in The New York Times, “Public health experts have been predicting this for years, and recent swine and bird flus served as test runs for today.” Just like buildings have possible escape routes posted in the event of a fire emergency, nursing homes should have been better equipped with a plan for their residents should something like this happen because it was never really that out of reach. Millrood writes from the perspective of a lawyer but also from the perspective of a grieving son. He knows firsthand how devastating this loss is for families because he lost his 82 year-old mother to COVID-19 that she contracted in her nursing home. He recalls questioning the thin masks he saw workers using while around his mother and suspects the facility was never truly equipped to protect its residents or workers from the beginning. 

If you have lost a loved one due to COVID-19 and he or she contracted it while living or working in a nursing home facility, contact a trusted lawyer today at Keller, Melchiorre, and Walsh to discuss a plan for justice. You are not alone in this loss, and we are ready to help you navigate this difficult time.

About the Author

Christopher Keller

Christopher J. Keller is an experienced plaintiff's personal injury attorney.  He concentrates his practice in the areas of Wrongful Death, Auto, Truck, Train & Motorcycle Accidents and Premises Liability.  Before founding Keller, Melchiorre & Walsh, PLLC, Mr. Keller practiced personal injury ...

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