Nursing Homes & The Coronavirus Outbreak | Wrongful Death Liability

Posted on April 6, 2020 by bermanstaff

While the COVID-19 pandemic has created widespread fear and health concerns among the general public, no group is more at risk than residents of nursing homes. Families and nursing home residents are facing overwhelming uncertainty, not only about how they can protect themselves but also whether they can even visit with loved ones. 

Hopefully, this will answer some of your questions about how to protect a loved one in a nursing home and what is being done to protect our vulnerable elderly population in nursing homes.  Nursing homes are at risk of wrongful death lawsuits if there is negligence in the care of their elderly residents during this coronavirus epidemic.  Already one Seattle-area nursing home has been hit with a coronavirus death wrongful death lawsuit.

Nursing Homes & the Coronavirus Pandemic (Covid-19)

Nursing homes across the country have become hotbeds for coronavirus breakouts. Not only do residents live in close proximity, they are also at the highest risk of catching COVID-19 and suffering the most severe consequences. Almost 15% of coronavirus deaths in New York have been nursing home residents. A nursing home in Kirkland, Washington was also the first major outbreak in the United States and left 35 elderly residents dead. 

The federal government hasn't been releasing a count of deaths and coronavirus infections at nursing homes, but reports indicate at least 2,300 infections and 450 deaths in long-term care facilities and nursing homes across the U.S. 

Coronavirus outbreaks in nursing homes have been picking up speed, too. On Friday, March 27, Los Angeles County had 54 coronavirus deaths, 6 of which were nursing home residents. By Monday, there were 11 nursing home outbreaks in the county, quadrupling the number from Friday. 

Nationwide, nursing homes have made the decision to temporarily stop visits and go on lockdown. In mid-March, President Trump asked long-term care facilities to suspend non-essential visits. While many nursing homes outside of hotspots are simply discouraging visits, skilled nursing facilities in hard-hit areas like New York may be outright banning visitors and volunteers completely except for very limited circumstances like end-of-life. 

What does this epidemic mean for residents of Nursing Homes and their families during the Coronavirus Pandemic? 

If you want to visit a family member in a nursing home, you will probably be screened and asked whether you have been coughing or sneezing, have a fever, have left the area recently, or have come in contact with someone who may have coronavirus. Depending on the facility, your temperature may be taken before you can enter the nursing home. You may not be barred from visiting a loved one, but you will be strongly discouraged from doing so. 

This situation has created an unbearable situation for nursing home seniors and family members. While staying away from residents and canceling visits may help protect nursing home residents from coronavirus, residents are also at risk of depression and social isolation, especially without interactions with volunteers and outings. The Kaiser Family Foundation noted that depression, anxiety, and social isolation are just some of the ways in which the COVID-19 pandemic will affect nursing home residents. 

The federal government has relaxed many regulations that are intended to protect residents. For example, California has temporarily waived the minimum staffing requirements at nursing homes. The Centers for Medicare & Medicaid Services (CMS) has also advised nursing homes that they can't refuse readmission to residents just based on a positive test for COVID-19. This may introduce the virus to vulnerable residents and many states, including California and New York, have followed the guidance. The California Department of Public Health has now ordered nursing home facilities in the state to accept patients who are positive for COVID-19

Nursing homes have always faced challenges in protecting residents, but the challenges have only grown with limited availability at skilled nursing facilities, testing shortages, staff shortages, and few supplies like masks and ventilators when they are most needed. 

How Are Nursing Homes Protecting Residents During the Coronavirus Outbreak?

Nursing homes are taking broad steps to protect vulnerable residents. Many long-term care facilities are becoming fortresses to the best of their ability. The CDC has updated its guidance for nursing homes to: 

  • Restrict visits except in end-of-life situations
  • Restrict volunteers and non-essential healthcare providers and personnel such as barbers and certain therapy providers
  • Cancel communal dining and activities
  • Actively screen residents and healthcare providers for respiratory symptoms and fever

Nursing homes should ensure providers do not come to work if they feel ill or have a fever and enforce strict adherence to hand washing and the use of personal protective equipment. Necessary supplies including facemasks, respirators, gowns, eye protection, and gloves should be worn. Staff should be screened at the beginning of their shift by taking their temperature. 

Facility cleaning should also become a priority using EPA-registered, hospital-grade products that can kill coronavirus on surfaces to limit the spread of the virus. 

Residents should also be actively monitored to recognize signs of COVID-19 and take necessary steps to both protect the patient and other residents. Residents should be monitored at least once a day for respiratory symptoms and fever. Seniors who have or are suspected to have COVID-19 should be placed in a private room with its own bathroom. Residents should be transferred if the facility cannot follow all precautions. 

The Centers for Medicare & Medicaid Services (CMS) which regulates the country's nursing homes recently released guidance on how facilities should accept patients who may have been exposed to coronavirus to best protect residents. The guidance states that nursing homes should readmit residents who have tested positive for COVID-19 or been exposed only if the facility is equipped to prevent the spread of the virus. When a nursing home can't comply with CDC rules, including creating an isolation wing and using personal protective equipment, the facility must wait until the resident has been without symptoms and had two negative tests before they can be readmitted. 

To make this more complicated, CDC guidelines do not require patients to meet these criteria before they are discharged from the hospital, potentially leaving patients without a place to go. 

Advice for Family Members of Nursing Home Residents During the Covid Outbreak

Family members and loved ones are encouraged to curtail visits to their loved ones in nursing homes but instead focus on other means of communication. The AARP offered several suggestions such as using FaceTime and Skype to visit face-to-face remotely. Even phone calls can help loved ones feel connected and less socially isolated. Many nonprofit organizations have stepped up efforts to donate iPads to local nursing homes to help seniors connect with their loved ones during the pandemic. Handwritten notes can also help residents feel connected and cared for. Responding to letters can also help them stay busy. 

Many advocates are urging family members not to move senior patients or try to bring loved ones home from a nursing facility to try to avoid coronavirus infection. Remember that moving an older adult from a nursing facility has risks and may have a lasting impact on the senior's health. Nursing home residents generally can't receive the type of care they need at home. 

Terry Fulmer, President of the John A. Hartford Foundation which works to improve care for seniors, recommends family members and residents stay in close contact with the long-term care facility to ask about their infection plan and monitor changes. Don't be afraid to ask the facility what precautions they are taking. 

Coronavirus & Financial Concerns For Nursing Home Residents

Loved ones and nursing home residents aren't just facing uncertainty about their health risks during the COVID-19 pandemic; there are also pressing financial concerns for many. 

Medicare has traditionally covered many of the costs associated with coronavirus but not long-term stays in nursing homes. Medicare has relaxed many of its rules during the pandemic to help ensure the most at-risk people receive the care they need. 

Medicare will cover: 

  • COVID-19 testing with deductibles and copays waived
  • Physician visits under Part B
  • Coronavirus hospitalization under Part A 
  • Transfers to a skilled care facility to make room at hospitals or if care is needed due to COVID-19 (temporarily during the crisis)
  • Telehealth visits with medical providers (temporarily)

Advocates are calling for further expansions to Medicare including waiving the Part A deductible for COVID-19 hospitalization.

Long-term care in a nursing home is usually paid for by Medicaid which will be expanding coverage during the emergency. 

The CARES Act, the $2 trillion coronavirus stimulus package, includes extra funding for CMS to help nursing homes keep facilities safe for residents and prevent the spread of the virus. It also allows Medicare beneficiaries to receive up to 3-month supplies under Part D coverage and expands telehealth services. 

The stimulus checks available to taxpayers with a Social Security number will offer $1,200 to adults who earned less than $75,000 in 2019. This benefit will be available to adults who claim Social Security benefits, including disability and retirement. 

Nursing Homes & Wrongful Death Lawsuits During The coronavirus & COVID-19 epidemic

Unfortunately, it's a simple fact that seniors are the most vulnerable amid the pandemic and nursing homes can be a dangerous place for residents. Long-term care facilities have a duty to protect residents and take necessary steps to stop the spread of coronavirus.  Sadly, nursing homes may have legal liability during the coronavirus (COVID-19) crisis.

When nursing homes fail to adequately protect residents from COVID-19, they may be negligent and face legal claims. Coronavirus is especially easy to transmit and more dangerous to seniors than the flu, but the precautions against both are similar. The CDC has advised healthcare professionals to follow strict protocols to stop coronavirus from spreading including practicing hand hygiene, restricting visitors, wearing personal protective equipment, and preventing possibly infected staff from working. 

The Kirkland, Washington nursing home connected with over two dozen deaths is facing over $610,000 in fines alone and faces the possibility of losing its federal funding due to flaws in how it handled the coronavirus outbreak. The facility failed to have emergency physician services 24/7 and did not have an emergency plan in place. It also failed to have an effective infection control surveillance plan in place, according to CMS. 

These fines are only penalties; they do not include potential legal claims from residents and family members who have been harmed by negligence during the coronavirus crisis. Nursing homes that fail to comply with new regulations and measures can face liability if their facility is linked to COVID-19 infections. 

The most important legal question will be whether the facility behaved negligently in their attempts to stop the spread of coronavirus. This can include failing to maintain sanitation, failing to comply with new state and CDC regulations, continuing practices likely to contribute to the spread of COVID-19, and failing to remove patients who test positive from the general population. 

Common Questions from Loved Ones and Nursing Home Residents During the Coronavirus Outbreak

Can I visit a family member in a nursing home during the coronavirus pandemic? 

Based on CDC recommendations, visits to nursing homes are temporarily restricted. Visitors are mostly barred with some exceptions like end-of-life.

How can I protect my loved one in a nursing home?

If possible, avoid visits with your loved one during the pandemic and ensure their facility is following CDC guidelines to protect residents.

What rights do I have to visit a family member in a nursing home during the coronavirus pandemic?

It's legal for facilities to bar visitors from entering during the coronavirus. Residents have the right to visitation, but the same rights also include protections against preventable injury and harm that allows a facility to take steps to stop the spread of the virus.

In what ways can I speak to a family member in a nursing home during the coronavirus pandemic?

Depending on the facility, you may be able to use FaceTime, Skype, or Zoom if the loved one has access to an iPad or tablet. Some facilities are offering phone calls and visits between glass.

Should I bring a loved one home from a nursing facility?

If you have a loved one who can be cared for at home, and no one else who is considered high risk in the household, it may be advised to bring your loved one home.

What should I do if my loved one's facility isn't following CDC standards? 

If you suspect a long-term care facility is not following CDC guidelines to limit the spread of the virus, contact your local long-term care ombudsman. 

Can I sue a nursing home for coronavirus negligence? 

Nursing homes that fail to take reasonable steps to stop the spread of the virus and follow new regulations may be open to lawsuits, including wrongful death lawsuits.

About Berman & Riedel, LLP firm managing partner attorney William M. Berman:

Attorney William M. Berman focuses his practice in the areas of catastrophic personal injury, wrongful death and elder abuse and neglect. Strictly a plaintiffs’ dedicated firm, he never represents insurance companies in the defense of claims. Mr. Berman’s firm remains staunchly committed to helping those who have suffered serious injury or loss due the negligence, intentional misconduct or wrongful acts of others. Mr. Berman has grown his firm to what is considered one of the largest and most successful elder abuse/neglect practices within California. Through his continued successes in handling claims involving nursing home and elder abuse and neglect, Mr. Berman remains a prominent figure in advocating on behalf of this vulnerable class of citizens.
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Below are answers to common questions people have about personal injury cases and working with a lawyer. During your initial consultation, we will be happy to answer questions that are particular to your case.

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You benefit from legal representation in exchange for an agreed-upon percentage of a settlement or jury award. We will only recover a fee if you recover compensation.

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There is no way to determine the exact value of a personal injury case, especially early in your case. However, an experienced attorney can give you an estimated range based on their experience with similar cases.

There are many factors that may influence the value of your case, such as:

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Some damages are easy to calculate, such as lost wages and medical bills. Calculating the value of diminished earnings for the rest of your life or future medical needs; however, may require the help of experts. Non-economic damages like pain and suffering have no intrinsic financial value. These damages are challenging to calculate. 

If your case goes before a jury, you may potentially be able to recover more than you could through a settlement. However, this introduces a new element of risk: the jury. The circumstances of your accident and even how sympathetic you or the defendant are can influence the outcome.

During your consultation, and throughout your case, we will help you understand how these factors influence your case. We will also work tirelessly to document the value of all your damages and pursue maximum compensation on your behalf.

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The vast majority of cases are resolved by reaching a settlement agreement outside of court. Very few personal injury cases actually go to trial, but it is more likely if the facts in your case are in dispute, a legal issue is being contested, or you have a high-value case.

An experienced lawyer will build your case as if it will go to trial from the beginning. The stronger your case and evidence, the more likely a fair settlement will be reached.

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If your case involves mostly property damage or minor injuries, you likely do not need a lawyer to handle a claim with the insurance company. The more serious your injuries, or the more complex your case, the more important it becomes to seek experienced legal counsel.

Remember that the insurance company is not on your side, even if the insurance adjuster seems sympathetic and you receive a settlement offer. If you are being blamed for your accident or sustained serious injury, a lawyer will help you protect your rights and build the strongest case possible. This includes calculating the full value of your current and future losses.

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