A state of disaster emergency was declared by Kentucky’s Governor Beshear on March 6, 2020, addressing the public health emergency caused by the COVID-19 virus. As of April 24th, Kentucky has confirmed COVID-19 cases at 59 of its long-term facilities in both staff and residents, and 73 long-term care residents in the state have died to date.  Testing is being increased in order to separate those who are sick from those who are not.  Nursing homes and other residential long-term facilities are under intense pressure, as the death toll increases, with regard to liability for the spread of the virus and associated death of the elderly residents.  Centers for Medicare and Medicaid certified facilities have mandatory pandemic plans in place as part of their standard operating protocols, which should have been swiftly put into place at the outset of the virus. Negligence claims may be brought out in cases where those protocols were not followed as immunity options are discussed.

Immunity.

As more coronavirus lawsuits are initiated, arguments will begin as to what negligence is defined as during an unprecedented event, such as the COVID-19 pandemic and if standard operating protocols regarding infection control will need to be reviewed. Some states have offered immunity, however granting blanket immunity to nursing homes is a slippery slope since some have been delivering substandard care, which is a consideration for nursing home abuse claims for negligence and unintentional neglect. Understandably, nursing homes do not want to be held legally responsible for bad outcomes beyond their control, as they struggled with staff shortages, not enough testing and limited personal protective equipment leaving everyone vulnerable to transmission.  If someone died at a long term care facility, or nursing home, because they were not isolated from sick individuals, a degree of  responsibility may fall onto the facility. Seeking consultation with an experienced attorney about the case is advised.

Negligence.

Nursing home abuse claims include acts of negligence that cause, or exacerbate existing health conditions or place residents in danger. Determinations will need to be made regarding any violations of the Nursing Home Reform Act (NHRA) of 1987, but taking into consideration the public health emergency and the overriding laws of the state during a disaster event.  Deviations from facility cleanliness, staff hygiene and administrative infectious disease protocols could place a resident at risk and may be considered acts of unintentional negligence.

Wrongful death.

If a loved one died due to substandards of care at a Kentucky nursing home, it may be prudent to file a  wrongful death legal action for negligence. The statute of limitations for wrongful death claims in Kentucky is two years from the date of the decedent’s death in most cases. Contact an experienced attorney for legal diection.

Sources.

Nursing Home Reform Act (NHRA) of 1987

https://law.justia.com/codes/kentucky/2011/411-00/411-130/

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