Nursing Home Negligence and COVID-19

Like all healthcare providers, Maryland nursing homes owe a minimum 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 facilities is at fault. Rather, senior care facilities simply have an obligation to take reasonable precautions to prevent the spread of infections.

At a minimum this means that the facility needs to policies and procedures for infection control that are consistent with the standard of care in the nursing home industry. This means that the facility must have reasonable hand washing, cleaning and other policies and some method of enforcing those rules and procedures. Federal and state regulations require certain infection prevention and surveillance policies at nursing homes. Almost all nursing homes currently have the required rules and procedures in place. The real problem is that these policies are not consistently followed by staff or enforced by management. A typical nurse or orderly at an assisted living home may not have time to strictly follow sanitation policies when they are caring for 12 needy elderly residents at once.

The COVID-19 pandemic has also created some new problems for nursing homes and their adherence to infection prevention procedures. For starters, elder care facilities in Maryland have found themselves even more understaffed than normal as sick employees are forced to stay home. Its even harder to strictly follow sanitation procedures when a nurse finds her patient load doubled because half of her co-workers are home. Equipment shortages are another major problem nursing homes are now facing. A recent survey of nursing homes found that 60% were reporting critical shortages of personal protective equipment (masks, gloves, etc.) and other medical supplies.

The sad reality is that between understaffing and protective equipment shortages, infection control protocol in Maryland nursing homes has actually become more relaxed now than it was before coronavirus.

Nursing homes in Maryland and across the country get sued for negligent care and abuse on a regular basis. So as the coronavirus wreaks havoc on elderly home residents many people are speculating whether senior facilities will face negligence lawsuits alleging that they failed to adequately protect their residents from infection. These sort of "negligent infection" lawsuits will eventually get filed across the country, but they will not be very successful.

Nursing homes and hospitals have a duty to protect against infection and can be liable if they breach that duty. However, lawsuits against health care facilities for failure to prevent to infection are rarely successful and most lawyers don't even try to bring them. The reason is because a plaintiff in a negligent infection lawsuit would need to prove what caused their infection and how it could have been prevented. Tracing the specific origin of a person's infection can be almost impossible to prove in most cases.

This may be different, however, for certain nursing homes that have been particularly hard hit by the coronavirus. 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 10% infection rates. 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 nursing home and support this with expert testimony.

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 treat cases are more effective is because it is much easier to prove causation in cases involving failure to diagnose and treat.

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 so many nursing homes might not have the ability to immediately test and diagnose residents for the virus. 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.

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 out sick.

Even under normal circumstances, Maryland 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 the 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 still have a basic obligation to prove minimum 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.