Recently, an industry news source recorded a fascinating podcast including an interview with a former assistant U.S. attorney who discussed legal issues that could arise for nursing homes from the COVID-19 pandemic. The podcast discusses how nursing home abuse and neglect cases may be affected by the virus. The information is very important for residents of Maryland nursing homes or those who have loved ones in these facilities.
The podcast discussed the various immunity laws passed for health care providers as a result of the pandemic in states across the country. These laws are not brand new—some states have long had immunity provisions that kick in automatically whenever a state of emergency is declared. Most of the current immunity provisions in effect now during the COVID-19 pandemic change the level of culpability that facilities can be held to in nursing home abuse or neglect cases that have to do with the disease.
Typically, someone bringing a nursing home abuse or neglect case has to prove that the actions of the facility amounted to negligence and contributed to resulting injuries, illness, or death. However, the immunity provisions typically increase the standards. According to the podcast speaker, the provisions basically say that nursing home facilities and the individuals working within them will no longer be responsible for negligent behavior. Instead, they can only be held liable at a higher standard, such as gross negligence or reckless disregard. This makes it much harder for victims of nursing home abuse or neglect to hold the facilities responsible, because it’s a higher bar of proof to reach. In other words, it might not be enough to show that the nursing home or employees acted negligently or carelessly and caused the spread of COVID-19 or even a COVID-related death. Instead, potential plaintiffs might have to prove that the nursing home was extremely careless, perhaps even maliciously or willingly, which is much harder to prove as a matter of law.