Nursing homes around the country, including those in Florida, have been instructed to ban all outside visitors to combat the spread of COVID-19 among the nation’s most vulnerable population.
Nevertheless, COVID-19 tragically continues to ravage nursing homes.
“They’re death pits,” said Betsy McCaughey, founder of the Committee to Reduce Infection Deaths. “These nursing homes are already overwhelmed. They’re crowded and they’re understaffed. One COVID-19-positive patient in a nursing home produces carnage.”
The Florida Department of Health disclosed that, as of April 16, 2020, 136 of the 668 reported coronavirus deaths in Florida were at long-term care facilities. What’s more, the death count is likely much higher because not every facility has tested everyone who has died since the outbreak began.
The grisly numbers beg a couple of questions:
How are nursing home residents becoming infected with COVID-19?
What rights (if any) do residents or family members of deceased residents have to sue the nursing home?
Cross-contamination — how COVID-19 spreads through nursing homes
In March, the Florida Division of Emergency Management issued, at the direction of Governor Ron DeSantis, an emergency order restricting access to nursing homes and assisted-living facilities.
Despite the emergency order, deaths have piled up. The Centers for Disease Control and Prevention (CDC) believes that cross-contamination may be the culprit.
“Cross-contamination” refers to the inadvertent transfer of contaminants from one surface to another. Cross-contamination can occur within a facility or between facilities.
Let’s look at a couple of examples:
- A staff member uses a chair to help a resident bathe. Unbeknownst to the staff member, the resident has the coronavirus. The staff member, without disinfecting the chair, places the chair in the hallway where another resident sits on it. This is an example of intra-facility cross-contamination.
- A patient receives care in an emergency room where they contract the coronavirus. The patient, who has not yet begun to show symptoms, is then transferred to a nursing home where they interact with other residents. This is an example of inter-facility cross-contamination.
The rights of nursing home residents
When a person is admitted to a nursing home, the person retains their rights as a citizen and also gains a special set of residents’ rights, which are mandated by state law.
These rights, which can be found in Section 400.022 of the Florida Statutes, include:
- The right to receive adequate and appropriate health care and protective services
- The right to be treated courteously, fairly, and with the fullest measure of dignity
- The right to be free from mental and physical abuse
Residents in assisted living facilities and adult family care homes have similar statutory rights, including:
- The right to live in a safe and decent living environment, free from abuse and neglect
- The right to be treated with consideration, respect, and with due recognition of personal dignity, individuality, and the need for privacy
Additionally, residents of nursing homes, assisted living facilities, and adult family care homes have rights under the Nursing Home Reform Act (a federal law), including:
- The right to freedom from abuse, mistreatment, and neglect
- The right to accommodation of medical, physical, psychological, and social needs
- The right to be treated with dignity
- The right to voice grievances without discrimination or reprisal
If a resident contracts COVID-19, they generally can’t sue someone unless the infection is the result of negligence. To establish that a nursing home was negligent, the resident will need to prove that:
- The nursing home owed a duty to the resident. Non-medical professionals owe residents a duty of “reasonable care,” while medical professionals owe residents the higher medical malpractice duty of care.
- The defendant breached the duty to the resident. A violation of the residents’ rights described in the previous section does not automatically constitute a breach, but it serves as evidence of a breach.
- The breach of the duty caused harm to the resident. The breach must be the direct and proximate cause of the harm.
One of the biggest obstacles residents face is proving that the nursing home’s action (or inaction) was the cause of the harm, and that they didn’t contract the virus as a result of some other action (such as a family member visiting the resident before the emergency order was issued).
Let’s take a look at a real-life example to see why causation can be difficult to establish.
In Washington State, an 85-year-old patient, Twilla Morin, died from the coronavirus in a nursing home. A lawsuit filed by her daughter alleges that the nursing home waited 17 days after an outbreak to quarantine residents.
To establish negligence, Twilla’s daughter will need to prove that Twilla wouldn’t have contracted the coronavirus if the nursing home had established a quarantine earlier. In other words, but for the delay, Twilla wouldn’t have contracted the coronavirus and died.
How can Twilla’s daughter prove that Twilla wouldn’t have contracted the virus if the quarantine was put in place earlier? How can she prove that Twilla didn’t have the virus before the nursing home even knew about the outbreak?
These questions are difficult to answer, but will be essential to the Morin family’s case.
Despite the challenges, proving negligence is certainly possible. Some actions that might lead to a successful negligence claim include:
- Failing to take adequate cleaning and disinfecting measures
- Failing to change gloves after each use
- Failing to quarantine patients
- Allowing non-essential people to visit the nursing home
- Transferring patients from hospitals into nursing homes (since according to the most recent guidance from the American Health Care Association, nursing homes should not accept patients with symptoms of COVID-19 unless they are tested first)
Nursing home lawsuit statute of limitations
A statute of limitations sets the amount of time a plaintiff has to file a lawsuit. If the plaintiff fails to file the lawsuit within this time, their case will be dismissed.
In most Florida lawsuits based on nursing home negligence, the plaintiff has 2 years to file a lawsuit.
In some cases, the statute of limitations may be even shorter. Regardless, it takes time to investigate a claim, identify potential defendants, and draft and file a lawsuit. If you think you have a legitimate claim, don’t wait to contact an attorney.
Nursing home negligence damages
In Florida, a personal injury plaintiff can recover the following types of damages:
- Economic damages refer to the monetary losses associated with an injury. These losses might include medical expenses, property damage, and any other out-of-pocket expenses incurred due to the injury.
- Noneconomic damages are designed to compensate you for the non-monetary consequences of your injury. For example, the subjective pain and suffering you experience as a result of your injury.
For loved ones filing a wrongful death lawsuit, they can recover damages for the lost support and services; the loss of the decedent’s companionship, protection, guidance, and instruction; pain and suffering; and medical and funeral expenses.