Coronavirus Lawsuits in Nursing Homes
The changes imposed on the American public as a result of the COVID-19 pandemic have infringed upon the freedom of many individuals. Moreover, employers did not protect workers in many industries with protective gear. The coronavirus hit rather suddenly, despite early warnings. The devastating illnesses and deaths have caused a lot of finger pointing. People want compensation for their injuries, and the courts have to settle the dispute of who is liable. Should people be suing employers for a natural born disaster? Is it immoral to sue during the midst of a pandemic? Does a pandemic mean people are free to be negligent? The question of morality and coronavirus lawsuits is a complicated one.
Nursing Homes and Coronavirus
One of the hardest places hit by the coronavirus pandemic is long-term care facilities. Residents in these facilities are typically senior citizens or disabled individuals with co-morbidities. The fact that they are already suffering from other medical ailments makes them more susceptible to coronavirus complications. As a result, there have been many more COVID-19 deaths in nursing facilities than in other residences across the nation and world.
Liability does not occur because a virus disproportionately affects one population. It may occur because facilities do not adequately protect its residents. This is a double-edged sword for care facilities. Not only have they not protected their residents, but they haven’t protected their workers. There simply is not enough personal protective equipment to go around. Rationing procedures have left many without proper protection. The virus has spread like wildfire. It has killed both residents and healthcare workers.
Too Many Bodies, Not Enough Supplies
One of the most egregious errors to-date allegedly occurred at a New Jersey care facility. Workers in the facility stored 17 bodies on top of each other in a morgue meant for 4 bodies. Someone left an anonymous tip stating one body was stored in an outdoor shed, but it was removed before authorities arrived. The facility was simply overrun and overwhelmed by the number of COVID-19 deaths. This calls into question whether or not family members were properly notified. It is not clear what the facility had planned to do.
Although different agencies have shipped PPE to numerous long-term care facilities, they are used sparingly. Some healthcare facilities have limited their employees’ access to critical safety supplies. Others are forced to sterilize and reuse masks. This all increases the risk that healthcare workers will get and spread the virus.
Bailing Out Nursing Homes with Sovereign Immunity
In Florida, a trade group representing nursing homes asked Governor Rick DeSantis to grant sovereign immunity to all healthcare facilities during the coronavirus pandemic. Sovereign immunity is when the courts protect an entity from the possibility of a negligence lawsuit. Basically, healthcare facilities can do no wrong because they are stressed by the unpredictable hazards of the virus and ill-equipped to protect people from it.
While this sounds very dangerous for health care workers and patients, there were some exceptions. People would still be able to file suit for, “gross negligence, reckless misconduct, or intentional misconduct.” So, facilities could do wrong. However, they would have protection for many of the questionable acts that have occurred surrounding the pandemic where fault is a difficult and multi-faceted concept.
Critics of DeSantis’s potential decision to grant sovereign immunity say he does not have the right. The separation of powers and three branches of government cannot overlap. Therefore, DeSantis doesn’t have the right to rule over the courts. DeSantis has not confirmed that he will try to enact sovereign immunity, and unless he does, we may not know how this would develop. The concern is that immunity would eliminate patients’ chance for compensation due to the negligence of healthcare facilities. People are also concerned that if facilities and healthcare workers are afraid of patients suing them due to mistakes, they may be reluctant to treat patients.
Refusing to Care for Patients
The news hasn’t really indicated that health care workers are limiting their scope of care due to fear of lawsuits. However, multiple healthcare workers have refused to care for COVID-19 patients because they don’t have proper PPE. In California, one hospital suspended three nurses. They will be paid during their suspension, but the hospital is facing scrutiny for its decision. Nurses are not refusing care out of malice. Many healthcare workers have died of COVID-19, which they contracted from patients. An N-95 mask combined with other suitable PPE is the only way to keep them safe.
Taboo Nature of Coronavirus Lawsuits
The question of coronavirus lawsuits and nursing homes then becomes one of morality and ethics. Some would say that it is important to give healthcare facilities a break in regard to lawsuits. However, people who are harmed by the negligence and inability to prepare for the outbreak deserve to be compensated for their injuries or loss of loved ones. There are varied opinions on the subject. While it is understandable that healthcare facilities were not prepped for this situation, this does not eliminate their duty of safe care to those who have been entrusted to them.
The public relies on its healthcare facilities to do everything it can to protect the health of its patients and workers. A shortage of supplies may be forgivable. Denying the use of available but sparse supplies is a difficult call. Being overwhelmed by bodies is understandable. Allowing them to pile up and not notifying family members isn’t as excusable. The civil court system is there to compensate people for injuries they should not have sustained. Civil suits can serve as a moral compass instead of a legal one in many cases.
Interesting Times Ahead in Coronavirus Lawsuits
In order to file a negligence lawsuit, a defendant must have been negligent. This may be accidental, but it must qualify as negligence. That negligent activity must have caused your injury. Lastly, you must have suffered an injury. This creates murky waters for coronavirus lawsuits at nursing homes and health care facilities.
The nurses who were suspended for not wearing masks were still paid. A court could determine that they suffered no injuries. This may eliminate the chance of any recourse against their employers. A medical professional has to determine that the deaths in nursing homes were confirmed coronavirus cases. The plaintiff must provide evidence that the residents actually died from the illness instead of one of their other health problems. Additionally, the plaintiff has to prove that the virus infected his or her loved one as a result of someone’s negligence.
Contact a Lawyer if You Think You Want to File
The first step in determining whether or not you should file a lawsuit is talking to a lawyer. A good attorney from an experienced law firm will help you to decide if your case is a clear winner or if you might be better off letting it rest. Lawsuits can be lengthy, and the benefits have to outweigh the cost. Speaking with an attorney will let you know what is likely in store for you, and it will help you to start on the path of healing from the trauma.
If you’d like to speak to an experienced personal injury lawyer, contact Kirshner, Groff, and Diaz for a no-obligation consultation. You’ll speak to an actual lawyer about your case with no strings attached.