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Can I Sue a Nursing Home During COVID-19?
The ongoing COVID-19 crisis has wrought havoc around the world, creating a new way of life and endless new legal questions. While everyone should take precautions against contracting and spreading the virus, certain populations are at much higher risk of severe illness. The elderly are one such population, which is what makes nursing homes such a dangerous place to live during the pandemic. Unfortunately, many residents of nursing homes and assisted-living facilities have nowhere else to turn, so they must continue to live in close quarters.
In New York, 6,200 nursing home residents have died of COVID-19 as of July 8, 2020. In fact, 42% of all Coronavirus deaths are linked to nursing homes. While loved ones of these victims are feeling sad, angry, and frustrated, and likely want to seek legal action against these care facilities, many are finding that they are not allowed to sue nursing homes for COVID-19 related deaths. New York, like many other states, has enacted laws shielding nursing homes from liability. Of course, most nursing home staff are working very hard and putting their own lives in danger to care for others, many of whom have become infected with the virus themselves. However, there are some who are not taking proper precautions and putting others’ lives at risk. Recent news stories have shed light on some unsafe, unsanitary, and sometimes gruesome practices that nursing homes have had to resort to. In these cases, the families may be left without retribution.
If your loved one contracted COVID-19 while living in a New York nursing home or assisted-living facility, you should contact a personal injury attorney right away to better understand what options may be available to you. No one should go through this emotionally tolling time alone.
Nursing Home Abuse
Generally, a victim of nursing home abuse or neglect may sue the facility to recover economic and noneconomic damages associated with their injuries or emotional trauma. Residents of New York nursing homes are entitled to many rights, according to the New York Department of Health, including the right to “be free from abuse including verbal, sexual, mental and physical abuse.”
When a nursing home fails to fulfill its duty to care for a resident, the victim or their family can usually bring a claim for negligence if they can prove that the negligent act or omission by the nursing home caused the injury or death of the resident.
Claims in the Time of COVID-19
What might a negligence claim against a nursing home look like during the COVID-19 pandemic? Though nobody can predict the influx of litigation the virus will spark, we can see some patterns beginning to emerge. One lawsuit brought in Washington state alleged that the defendant nursing home caused the death of the plaintiff’s mother because:
- It failed to promptly quarantine its residents and staff, even management they knew they were on “high alert”
- The facility continued to admit new residents
- The facility failed to conduct quality assurance checks
This exact claim may be said for thousands of families in the plaintiff’s position who believe the nursing home’s reluctance to act contributed to, or caused, their family member’s illness or death. Of course, it is easy to see how this influx of litigation could be devastating to nursing homes and care facilities across the country, many of which are already suffering financially and unable to provide decent care, even when a pandemic is not ravaging its staff and residents. Some states, like New York, have taken steps to shield medical facilities, including nursing homes, from liability related to COVID-19.
New York’s Immunity for Skilled Nursing Facilities
What Does the Law Say?
Because of the nursing home industry’s fear of a floodgate of negligence and medical malpractice litigation, the New York legislature passed, seemingly accidentally, a provision protecting nursing homes against lawsuits related to COVID-19. The law says that “any health care facility or health care professional shall have immunity from any liability, civil or criminal, for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services” as long as
- The care is done according to applicable law or a COVID-19 emergency order
- The act or omission was related to providing health care
- The treatment was impacted by the facility’s response to COVID-19, and
- The facility was acting in good faith
The law does not shield against lawsuits for gross negligence, recklessness, or criminal misconduct, but some lawmakers say that the gross negligence standard is so high that in effect, this is a total bar on prosecuting claims against nursing homes.
Why the Law May Change Again
This rule was slipped into an unrelated budget bill, with some legislators not realizing that it was included. The New York legislature is quickly proposing a new bill that would strike this immunity provision, stating that the right to sue for inadequate care is one of the only tools available to hold nursing homes accountable. It’s possible, then, that this rule could soon be reversed and avenues of recovery may open up for families devastated by the injury or death of a loved one.
If you believe you or your loved one has a claim against a New York nursing home that failed to properly care for your family member during COVID-19, there may still be options to hold the facility accountable. Contact a New York personal injury attorney to find out if you have a claim.
 Compl., de los Angeles v. Life Care Centers of America, et al., (Apr. 10, 2020, Superior Ct. of King Cty., Wash.).
 2020 N.Y. ALS 56, 2020 N.Y. Laws 56, 2020 N.Y. Ch. 56, 2020 N.Y. SB 7506, 2020 N.Y. ALS 56, 2020 N.Y. Laws 56, 2020 N.Y. Ch. 56, 2020 N.Y. SB 7506, § 3082(a)