When Is a Nursing Home Legally Liable for Neglect?
According to government officials, an estimated 25% of the 15,000 nursing homes in the United States have had residents infected with COVID-19. Industry watchdogs believe that more than 40% of all coronavirus-related deaths have been among residents of nursing homes or assisted living facilities. Even though nursing home operators are required by law to immediately notify state and local authorities of any suspected infectious diseases, many nursing homes are not fully disclosing information about confirmed cases and deaths. At least two states—Texas and Virginia—have refused to provide government officials with any information about the impact of the virus on nursing homes in their states.
What are the duties of a nursing home operator when it comes to protecting residents from illness or contagious disease? When can you pursue legal action against a nursing home or assisted living facility for the illness or death of a loved one?
The Duty of Reasonable Care
As a general rule, a lawsuit for injury or death due to carelessness or neglect in a nursing home or assisted living facility is based on a legal claim of negligence. Under the longstanding principle of negligence, all persons in society, including nursing home operators, have a legal obligation to exercise reasonable care in all actions and behavior.
There’s no codified law, though, that specifically defines what constitutes “reasonable” care. In practice, whether a person’s actions met the standard of care is a fact determined by the jury. When making such a determination, the jury attempts to identify what a typical person, exercising ordinary prudence, would do in similar circumstances.
Accordingly, there’s no absolute duty to ensure the safety of nursing home residents. But operators must take the steps that a reasonable person would. With respect to COVID-19, a jury would have to determine what measures would be reasonable—closing the facility to all visitors, requiring staff to wear masks and gloves, etc. The jury does not have unlimited discretion to establish a standard of care. The legal principle of stare decisis (“let the decision stand”) is followed in American courts and requires juries to give weight to prior rulings on similar issues.
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