Are the New York Governor’s decisions regarding COVID-19 and nursing home safety double-edged?

The newly approved New York State budget has language that prevents residents from taking legal action against nursing home facilities for negligence related to COVID-19 treatment. It is modeled after Good Samaritan laws, which shield bystanders and volunteers from lawsuits for their actions taken during times of crisis. Because the state recruited thousands of volunteers for nursing home and other healthcare facilities, legal protections seemed appropriate as the feat of gathering their services in an urgent manner was so grand.

Some lawmakers believe this bill prevents basic legal action against long term care centers regarding staffing and equipment shortages amid COVID-19 treatment necessary for nursing home residents, but gross negligence and criminal misconduct can still be legally challenged, based on more common nursing home abuse allegations. Many New York nursing homes have been devastated by the pandemic, revealing a death toll of more than 5,300 residents and some are left questioning the resolved state mandate directing nursing homes to re-admit and admit patients suspected or diagnosed with COVID-19 during the crisis.

Isolation protocols.

Did the temporary state mandate act against the national standards of care that most states have adopted for nursing homes and long-term care facilities regarding infection control procedures? Those standards are designed to:

Minimize the risks of infection to individuals living in nursing homes,
Reduce risk of infection contracted through medical devices utilized in routine daily care,
Reduce risk of transmission of infection between residents and nursing home staff,
Inform and isolate patients who are found to be infected with communicable diseases.

Once the facility had knowledge of the increased risk of infection and a resident’s responsible party was not contacted regarding the need for isolation, questions of negligence regarding the health outcome of that resident may fall back onto the facility. Contact an attorney who specializes in nursing home law to guide justified actions, despite immunity granted in some situations for the outcomes of this pandemic.

Federal regulations.

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.

Wrongful death.

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 in grave injury inflicted by the negligence or wrongful act of another.

Sources.

Nursing Home Reform Act (NHRA) of 1987