Nevada is one of 15 states to grant some type of immunity to nursing homes and long term care facilities amid the COVID-19 crisis. Among these state directives there is some variation, but they mostly apply to injuries, deaths and care decisions related to COVID-19 treatments. Most orders make exceptions for gross negligence and actions of willful misconduct. Even so, representatives from the Center for Medicare Advocacy acknowledge that legal action for these two exceptions could be more difficult to prove, since facilities could argue that deficiencies were tied to the pandemic.
As of May 12, Nevada has 446 cases of COVID-19 at its nursing homes and long term skilled facilities, with 63 resident and 2 staff deaths. While federal and state laws have been put into place to protect nursing home residents’ basic rights and ensure they are not abused or neglected in their living situation, the unprecedented impact of COVID-19 may alter the way those laws are interpreted with this focus. The nursing home population is fragile and the effects COVID-19 loneliness, uncertainty and fear can cause, or exacerbate health problems in this population, and the United States toll at nursing homes has been significant. The lack of transparency at some nursing homes regarding COVID-19 reporting has led some families to entertain legal action.
Nursing homes are bound by Federal Regulation 42 CFR sec. 483.25 (h) providing for a facility to ensure a resident’s environment remains as free of hazards as possible and that ample supervision and adequate medical treatment upholding the current medical standards of care is given. Claims of abuse that can be reported include acts of negligence that cause, or exacerbate existing health conditions or place residents in danger. The lack of transparency may have put nursing home residents in danger once administration and staff became aware of the dangers associated with COVID-19.
If wrongful death of a loved one occurred during the COVID-19 pandemic, a family may be compensated if they can prove that gross negligence was involved. Since Nevada is among the states with some type of immunity given, the case would have to prove that the negligence occurred unrelated to COVID-19. Elements that will determine the value in a case of nursing home abuse include economic damages, non-economic damages and sometimes punitive damages.
Wrongful death legal actions arise out of grave injury inflicted by the negligence or wrongful act of another. An experienced attorney can navigate the way the laws are interpreted for COVID-19 negative outcomes with possible compensation to Nevada families.
Nursing Home Reform Act (NHRA) of 1987