Reasonable care, or Reason to sue? Mauney PLLC answers some pressing questions about the care your loved ones are getting the midst of the virus crisis.
Coronavirus Infections and Nursing Home Negligence
Mauney PLLC continues to get telephone calls from families concerned about their elderly loved ones in North Carolina’s nursing homes. More than 150 coronavirus-related deaths and some 2500 cases of the disease have been linked to group facilities in North Carolina, such as nursing homes for the elderly. According to data recently released by the North Carolina state government, as of April 27, 2020, at least 17 people who lived in nursing homes in Mecklenburg County have died from COVID-19 virus-related illness. In Wake County, 7 have died, and in Durham County, 12 have died. Senior care facilities have become hot spots for the spread of COVID-19 also known as the “coronavirus.” The coronavirus seems to thrive and spread rapidly in nursing home populations.
North Carolina’s Executive Order 131
The problem of caring for our elderly during the virus pandemic has prompted the North Carolina Department of Health and Human Services (NCDHHS) to establish, through Executive Order 131, a set of public health and safety requirements for nursing homes (which also encourages other long-term care facilities to follow the same guidance). Some of the directives from NCEO 131 include:
Canceling communal activities, including group meals;
Taking the temperature of employees and essential personnel when they enter the facility;
Requiring specific personal protective equipment in the facility; and
Requiring close monitoring of residents for COVID-19 health indicators like body temperature.
More information about the Executive Order 131 can be found here: https://www.ncdhhs.gov/divisions/public-health/covid19/long-term-care-facilities.
The proliferation of COVID-19 in North Carolina's nursing homes is, at least in part, a reflection of the often chronically low standard of care provided in some of these facilities. Elder care facilities in North Carolina are notorious for understaffing and cost-cutting policies by facility owners have fostered a system of neglect and low-quality care.
The impact of the coronavirus on North Carolina's nursing homes has led to many questions about the legal accountability of nursing homes and what, if any, liability these facilities may face for negligent care during the pandemic.
This page will discuss what legal obligations a nursing home has and whether they can be sued for negligently failing to protect elderly patients from infection. We will also discuss a separate but related issue of whether homes can be liable if residents are not being cared for because of social distancing policies.
What Legal Obligations apply to Nursing Homes with respect to Protecting Residents from Infection?
Like all healthcare providers, North Carolina’s nursing homes owe a minimum standard or duty of care to all residents. This does not mean that nursing homes have a strict obligation to prevent all their residents from getting infected with a virus like COVID-19. Just because an elderly resident gets the virus it doesn't automatically mean that the facility is at fault. Rather, senior care facilities simply have an obligation to take reasonable precautions to prevent the spread of infections. When senior care facilities do not use reasonable care, or follow prevailing standards, they are said to be “negligent.”
At a minimum this means that the facility needs to have policies and procedures in place for infection control that are consistent with the standard of care in the nursing home industry (and with North Carolina law). This means that the facility must have reasonable hand washing, cleaning and other policies in place and they must have some method of enforcing those rules and procedures. Federal and state regulations also require nursing homes to maintain certain infection prevention and surveillance policies. Many nursing homes have the required rules and procedures in place. But what often happens is that these policies are not consistently followed by the nursing home staff or enforced by their management. A typical nurse or orderly at an assisted living home also may not be given the resources to follow sanitation policies when they are tasked with caring for 12 elderly residents at once.
The COVID-19 pandemic has created new problems for nursing homes with respect to their adherence to existing infection prevention procedures. For starters, elder care facilities in North Carolina have found themselves even more understaffed than normal as sick employees are forced to stay home. Adherence to safety and sanitation standards becomes even harder to follow when a nurse finds her patient load doubled because half of her co-workers are quarantined at home. Equipment shortages are another major problem that nursing homes are facing right now. A recent survey of nursing homes found that 60% are reporting critical shortages of personal protective equipment (masks, gloves, etc.) and other medical supplies.
Can Nursing Homes Be Sued for Failure to Prevent Infection?
Nursing homes in North Carolina and across the country can and do get sued for negligent care and abuse on a regular basis. So as the coronavirus wreaks havoc on elderly home residents, many people are asking whether senior facilities will face negligence lawsuits that contend that they failed to adequately protect their residents from the COVID-19 infection. Typically, lawsuits against health care facilities over failure to prevent day-to-day infections are rarely successful and most lawyers decline such cases. The reason day-to-day infection cases get declined is because a plaintiff in a negligent infection lawsuit must prove what caused the infection at issue and that plaintiff must also show the infection could have been prevented with reasonable care. Tracing the specific origin of a person's infection can be almost impossible to prove.
Nursing home cases involving the coronavirus infection may be different and more provable, however. For example, let's say you have one specific nursing home with a 90% infection rate while another nursing home down the road only has a 10% infection rate. A plaintiff may have success against the first nursing home if they could point to deficiencies in that the facility's infection control protocol compared to the other nearby nursing homes (with support from a qualified expert’s testimony).
Can Nursing Homes Be Sued for Failure to Diagnose or Treat a COVID-19 Infection?
In infection malpractice cases, plaintiffs usually have much more success alleging negligent failure to diagnose and properly treat an infection as opposed to failure to prevent the infection. The reason “failure to diagnose” or “failure to treat’ cases have a better chance of success is because it is much easier to prove causation in cases involving failure to “diagnose” and to “treat.” Causation means presenting reasonable proof that the plaintiff-patient got the virus while under the care of a nursing home.
In COVID-19 cases, however, holding a nursing home liable for failure to timely diagnose or properly manage a COVID-19 infection might be particularly difficult for several reasons. First, there is a well-known shortage of COVID-19 testing kits. This means many nursing homes might not have the ability to immediately test and diagnose residents for the virus. Second, even after the virus is diagnosed, the nursing home may not have access to equipment and supplies necessary to treat the resident or prevent them from spreading the disease. Finally, even when an elderly resident tests positive for COVID-19, the nursing home cannot just send them off to the hospital until they exhibit serious symptoms.
Will Nursing Homes be Liable for Neglecting Resident Care During Pandemic?
The extreme strains the coronavirus is putting on many nursing homes may be creating another, secondary problem. Many elderly residents at nursing facilities may not be getting the necessary level of care that they need from staff at the facility. Nursing homes across the country are reporting widespread understaffing because so many employees are calling in sick.
Even under normal circumstances, North Carolina’s nursing homes have issues with understaffing resulting in neglect. This problem has become even more acute now. Countless elderly residents may be getting left in their beds and neglected because there are not enough staff on hand to take care of them or because attending staff want to avoid contact with them. Moreover, visitors are not being allowed into nursing homes, so there is no oversight from concerned family members.
Nursing facilities nonetheless have a basic obligation to maintain the required legal standard of care for residents, and this obligation does not get temporarily suspended because of the coronavirus pandemic. Nursing homes can and will be held accountable for neglect or abuse of elderly residents.
Email or Call Mauney PLLC About Nursing Home Neglect Cases
Mauney PLLC handles nursing home neglect and abuse cases in North Carolina. If your loved one has been the victim of nursing home neglect during the coronavirus shutdown, contact us today for a free consultation. Email us at: info@mauneypllc.com.