Given the congregate nature of nursing homes and the fact that many residents have underlying medical conditions that result in compromised immune systems, long-term care facility populations are at a high risk of being affected by viruses like COVID-19. This is why strong infection prevention and control are critical to protect residents and healthcare workers.
Unfortunately, many facilities’ response to COVID-19 has shown us that nursing homes are generally unprepared to handle an outbreak as serious as the one we’ve witnessed the past few months. Because of that lack of preparation and ability to control the spread of the coronavirus, it’s not surprising that many family members are looking to hold facilities accountable for their loved ones’ illnesses and, in some cases, deaths.
In order to shield nursing homes from COVID-19 accountability, a number of states have enacted legal immunities. In many cases, this means that nursing homes cannot be held legally accountable for failing to mitigate infections and prevent loss of life.
COVID-19 in Nursing Homes and Legal Immunities
Since the outbreak of COVID-19 began, more than 15 states have granted some form of legal protection to nursing homes and other healthcare facilities. While the legal immunities do not cover willful or criminal misconduct or gross negligence, they most likely cover harm related to a shortage in staffing or personal protective equipment.
According to the New York Times, a push for nursing home immunity started when businesses nationwide lobbied the Trump administration and Congress to protect United States companies from a range of potential lawsuits. Potential lawsuits include those from customers or employees who contracted the virus and accuse the business of being a source of infection.
Many nursing home operators have said they are not to blame for the infection rates and loss of life caused by the outbreak by highlighting the challenges of handling an unforeseen pandemic. For many nursing homes, it’s been a struggle to obtain testing kits and basic protective gear like gowns and N95 masks.
In recent weeks, however, reports of horrific scenes within nursing homes have come to light. Across the country, there has been news of severe staffing shortages, terrified residents unaware of what’s going on, and the bodies of dead residents piling up in makeshift morgues. Family members of residents have also struggled to get information about COVID-19 in nursing homes and how their loved ones are doing.
According to nursing home advocates, the three longstanding safeguards against negligent nursing homes included family members who visited frequently, regular inspection by federal regulators, and nursing home abuse lawsuits to hold negligent facilities accountable. Because of the virus, however, many family members have been banned from visiting and regulators have largely stopped inspecting.
According to Richard N. Gottfried, the chairman of the Assembly’s health committee, “[The bill] is very troubling. There’s a very long history of abuse and neglect of nursing home residents. And to add to that a reduction in the ability of patients and family members to seek relief in the courts is very scary.”
With the legal immunities shielding nursing homes from lawsuits, neglected residents and their family members don’t know where to turn or who to hold accountable for their losses.
Current Status of COVID-19 in Arkansas Nursing Homes
In April, Arkansas Governor Asa Hutchinson granted healthcare providers immunity from lawsuits related to COVID-19 outbreaks. At the time the executive order was passed, 93 nursing home residents throughout the state had tested positive for the virus and six residents had died.
As of June, the state has seen over 10,000 total COVID-19 cases. According to state-released data, there have been over 7,000 recoveries. Of the currently active 3,000+ cases, fewer than 150 have been reported in nursing homes.
While COVID-19 has not hit Arkansas’s nursing homes as hard as other states, it’s likely that a number of cases have gone unreported—especially with the inadequate testing capabilities.
Get Help With Coronavirus Concerns
If your loved one has tested positive for COVID-19 in their nursing home facility and you have legal questions regarding the nursing home’s mitigation tactics and general pandemic response, get in touch with McMath Woods P.A.
With the legal immunities in place, it can seem like there are no options to hold a negligent facility accountable for their failures related to COVID-19. With an unprecedented situation like this, there are many questions revolving around legal options and what a family can do to protect their loved one.
At McMath Woods P.A. our lawyers are prepared to explore your legal options and determine what can be done to ensure your loved one receives what they need to recover. Contact us today for more information.
