Nursing Home Wrongful Death Cases & Coronavirus | Guide to Covid-19 Lawsuits

Posted on June 5, 2021 by bermanstaff

Since the start of the coronavirus pandemic, nursing home residents have been the most vulnerable to the virus. The first suspected local transmission occurred on February 26 in California, the same date of the first recorded COVID-19 deaths: two residents at a California nursing home. Just days later, a Washington nursing home was the site of the first coronavirus outbreak. By late March, the U.S. was leading the world in COVID-19 cases.

Throughout the pandemic, nursing homes have been a frequent hotspot for coronavirus outbreaks. Coronavirus deaths in nursing homes also account for a disproportionate share of total COVID-19 deaths.

Have you lost a loved one in a nursing home due to a coronavirus outbreak? Nursing home wrongful death cases may result from a coronavirus outbreak if the nursing home was negligent in its infection control procedures. COVID-19 lawsuits are on the rise in California, although these cases do pose unique challenges.

COVID-19 Data – Stats on Coronavirus Deaths in Nursing Homes

Coronavirus deaths in nursing homes account for one-third of the country’s total COVID-19 deaths yet only 4% of all U.S. cases. In California, 21% of coronavirus deaths have been linked to long-term care facilities but it’s even higher in some states like Minnesota (59%) and New Hampshire (66%).

As of June 1, 2022, over 1,383,000 people at 32,000 nursing homes and long-term care facilities have been infected with coronavirus. At least 184,000 nursing home deaths have occurred due to COVID-19. This includes residents and staff.

It isn’t just nursing home residents who are vulnerable to COVID-19; in 2020, nursing home staff had a higher death rate than loggers in 2019, the second-most dangerous occupation in the U.S. It’s estimated there have been 3,600 fatal staff cases of COVID-19.

Earlier in the pandemic, which began in nursing homes in the United States, coronavirus deaths in nursing homes accounted for 43% of U.S. coronavirus deaths.

There have been at least 32,000 nursing homes with at least one coronavirus case in the U.S. Most nursing homes have had more than one COVID-19 outbreak.

The COVID-19 vaccine availability, which was prioritized to long-term care facilities in December 2020, has reduced COVID-19 deaths and new cases in nursing homes. Between late December 2020 and early February 2022, new coronavirus cases in nursing homes and other long-term care facilities fell 80% according to federal data. The number of coronavirus deaths in nursing homes dropped 65% in facilities even as deaths spiked elsewhere in the U.S.

Between December 2020 and April 2022, long-term care facility deaths in California were down a dramatic 98% and nationwide by 89%.

472 nursing home deaths were linked to COVID-19 in the first two weeks of May 2022. That’s down from 10,675 during the first two weeks of January according to federal data for nursing homes. However, nursing homes are still struggling with coronavirus outbreaks that are now largely linked to unvaccinated staff.

What Are Nursing Homes Required to Do to Prevent the Spread of COVID-19?

In the beginning of the pandemic, it may have seemed that nursing homes could have done nothing to stop the spread of coronavirus, a novel and fast-spreading virus. However, nursing homes are required by the state and federal government to maintain appropriate levels of staffing and infection control protocols.

To receive payment from Medicaid and Medicare, nursing homes in California must comply with CMS requirements. This includes rules on emergency preparedness, care plans, and medical services.

Some of the most important things a nursing home should do to prevent infectious disease include:

  • Follow CDC guidelines
  • Restrict visitor access
  • Adopt and follow an infection control procedure to identify infection and prevent its spread
  • Provide adequate nursing time per resident
  • Provide adequate medical care and emergency services to residents
  • Provide frequent supervision for high-risk residents

Between 2013 and 2017, 4 out of every 5 nursing homes surveyed were cited for deficiencies in infection prevention and control.

Nursing homes in California are also required to report COVID-19 cases to the CDC within 12 hours of confirmation. Family members must also be notified of confirmed COVID-19 cases on-site within 12 hours. Family members must be notified of new respiratory symptoms their loved one develops within 72 hours.

What if a Nursing Home is Not Following CDC Guidelines?

If your loved one’s nursing home is not following CDC guidelines or you have concerns and feel the facility is not being forthcoming, there are several steps you can take.

Learn more about how to report nursing home abuse and neglect here. You can also contact a California nursing home abuse lawyer for help protecting a loved one or holding a negligent facility accountable for a loved one’s death.

Are Nursing Homes Financially Liable for COVID Deaths at Their Facility?

Nursing homes are required to follow CMS facility management requirements and take reasonable steps to protect residents from COVID-19. This can include regular infection control measures which were a requirement prior to the pandemic and new CMS and CDC guidelines for coronavirus in nursing facilities. If a nursing home fails to follow guidelines and stop the spread of the virus, it may be liable when residents die from COVID-19.

There are many ways in which a nursing home may be considered negligent:

  • Lack of adequate staff and failure to plan to staffing shortages
  • Failing to adopt social distancing guidelines
  • Allowing staff members to return to work if they have symptoms or have tested positive
  • Not testing residents and staff regularly
  • Failing to notify the CDC or family members promptly of respiratory symptoms or positive COVID-19 cases
  • Note creating a space in the facility to isolate and care for residents with symptoms
  • Failing to provide adequate personal protective equipment (PPE) for staff
  • Not providing supplies necessary to sanitize and exercise proper hygiene
  • Failing to recognize symptoms in residents and ensure they receive adequate medical care or hospitalization

Coronavirus Wrongful Death Lawsuits

California nursing homes are held to a high duty of care to protect residents and ensure their needs are met. They are required to follow an Infection Control Program (ICP) and take reasonable steps to prevent and mitigate infection. If you have lost a loved one to COVID-19 in a nursing home, you may have a wrongful death claim against the facility.

Do California Nursing Homes Have Immunity Against COVID-19 Lawsuits?

Many states have enacted laws granting immunity to long-term care facilities against lawsuits related to COVID-19. However, California has not shielded nursing homes from liability. Even when legal immunity is provided, it does not apply to intentional misconduct or gross negligence.

Several lawsuits have already been filed in California against nursing homes. These lawsuits allege facilities have failed to report symptoms and COVID-19 cases, concealed outbreaks, harmed residents through severe understaffing, and failed to take reasonable steps to prevent the spread of coronavirus.

Who Can Bring a Wrongful Death Claim in California?

California Code of Civil Procedure Section 377.60 limits who can file a wrongful death lawsuit to:

  • A spouse or domestic partner
  • Children (adopted and biological)
  • The decedent’s next living heir or descendent which may be a parent, sibling, or grandchild
  • People who were financially dependent on the decedent such as putative spouses and stepchildren

The “one action rule” in California requires that all known heirs are included in a wrongful death action.

How to Prove a Wrongful Death Case in California

Proving a wrongful death case requires establishing:

  • The defendant owed your loved one a duty of care,
  • The defendant breached their duty of care,
  • The defendant’s breach led to the wrongful death of your loved one, and
  • Your family suffered damages as a result.

It can be challenging to prove causation in a wrongful death case, or showing that the defendant breached their duty and this led to your loved one’s death. In a COVID-19 wrongful death case, the challenge is showing how the resident contracted the virus which has been extremely widespread. To prove your case, your San Diego wrongful death lawyer will conduct an investigation into the facility’s infection control practices to determine if recommended standards and required guidelines were followed.

It is not always necessary to show exactly how a resident acquired COVID-19 to show that a nursing home breached their duty of care. If a nursing home was hit hard by a COVID-19 outbreak with a very high infection rate and another nursing home nearby had a very low infection rate, deficiencies in the facility’s infection control become more convincing.

Instead of relying on failure to prevent infection, your wrongful death case may instead allege negligence in diagnosing and/or treating an infection. It is typically easier to prove causation in these cases if the facility was not testing patients and staff as recommended, ignored respiratory symptoms, or failed to promptly report positive cases and symptoms.

Do you believe your loved one died from COVID-19 due to their nursing home’s negligent practices? Berman & Riedel, LLP is prepared to hold the negligent facility accountable. Our San Diego nursing home abuse lawyers have decades of experience handling complex wrongful death cases involving nursing home negligence with results that speak for themselves. Contact our law office today for a free consultation to discuss your legal options and what we will do to build a case against the nursing facility.


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

bermanstaff
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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Can You Tell Me How Much My Case Is Worth?

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.

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  • The impact of your injuries on your daily life
  • The strength of your case
  • Whether you share fault for your accident
  • Insurance policy limits 

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.

How Do I Know If I Need a Personal Injury Lawyer?

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.

Legal representation is also vital if your case involves a complex area of law such as elder abuse or neglect, premises liability, commercial vehicle accidents, medical malpractice, or serious work-related accidents. Determining liability, navigating decades of legal precedence, and interpreting specific statutes in these cases is best done with years of relevant legal experience.

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