Can a Nursing Home Be Liable When a Resident Dies from Coronavirus?

The coronavirus pandemic has been particularly hard on the elderly and infirm nationwide, with estimates that nearly 40% of all deaths in the United States have occurred in nursing homes and long-term care facilities. The New York Times reports that, as of October 20, over half a million people in nursing homes and assisted living facilities have been infected. Many questions remain about the response of nursing homes to the pandemic. Are they taking timely action to isolate patients who test positive? Are they following protocols established by public health officials? Are their actions careless or negligent? Can you take legal action if your loved one dies in a nursing home or assisted living facility because of COVID-19?

Nursing Home Negligence in Ordinary Times

Nursing homes have long been potentially responsible for injury or death to residents/patients based on the legal principle of negligence. Negligence requires that you show three things:

• That the defendant’s actions breached (fell short of) the standard of care reasonably expected under the circumstances,
• That the defendant’s breach caused an accident or event, and
• That the plaintiff suffered injury because of the accident or event.

In most cases alleging negligence, the standard of care is that of an “average person of ordinary prudence.” However, with nursing homes, as with all medical providers, the standard is somewhat higher. A nursing home must provide care that is reasonable according to current medical and nursing-home-care industry standards. Under that standard of care, you may have a strong case for liability if you can demonstrate that the nursing home or its employees did not follow commonly-accepted practices (including the recommendations of public health officials).

Immunity for Liability for COVID-19 Consequences

The legal principles governing the liability of nursing homes in New Jersey (and a number of other states) is limited by legislation and executive orders that grant immunity to such facilities in responding to the pandemic. In the early days of the spread of coronavirus, New Jersey Governor Phil Murphy signed an executive order granting broad immunity to facilities and health care workers who respond to the crisis “in good faith.” The New Jersey legislature took up the initiative a week later and passed a similar law. While critics acknowledge that health care workers are at great risk when caring for COVID-19 patients, they worry that immunity from liability might allow nursing homes to understaff and underpay workers, to the detriment of residents and patients.