Nursing homes and long term care facilities are responsible to keep residents safe from harm, and attend to their health, supported by measures outlined in state and local guidelines. Under Federal Regulation 42 CFR sec. 483.25 (h), they must provide an environment free of hazards with ample supervision and adequate medical treatment to uphold the current medical standards of care. The Centers for Medicare and Medicaid, and the Centers for Disease Control have outlined specific protocols to contain the spread of COVID-19 infection in these facilities. If a healthcare provider did not follow the guidelines, there may be some circumstances where they could be held responsible for negative health outcomes and death, based on treatment and care given to residents. New Mexico reported 205 statewide related deaths.
The constant flow of staff and visitors may have increased the risks of COVID-19 to residential living quarters, along with deviations from cleanliness, staff hygiene and administrative infectious disease protocols, causing unintentional negligent harm to residents placing them at risk for infection. The facility-mandated isolation protocols under the new guidance require the use of PPE, separate staffing for treating infected residents, reducing resident exposure by requiring face covering when residents are outside of rooms, and providing transparency to loved ones and government agencies about positive cases and screening counts undertaken within a facility. If negative resident health outcomes, or death occurred due to deviations from protocol, responsibility may fall onto a facility, and an attorney who specializes in nursing home law may be able to assist with necessary actions against negligence.
Families can assist in reducing exposure to COVID-19 and addressing the emotional health of a resident by:
- Arranging for remote contact and calls so loved ones remain connected.
- Checking in with the nursing home administration to find out if they are following state and federal guidelines relevant to the pandemic.
- Inquiring as to needs for paper products, cleaning items, masks, gloves, or other personal protection equipment that you might provide to the facility.
- Making certain the nursing home has an effective way of communicating with you, in the event that you want to transfer your loved one, or if there are changes in their health
When family members do what is necessary to protect their loved ones living in long term care facilities and death is caused by caregiver acts of negligence during COVID-19 treatment that exacerbated existing health conditions, an investigation should occur to make certain a resident’s rights were not violated. A wrongful death action can be brought forth in New Mexico when a person’s death was caused by carelessness of another party, but negligence must be proven before compensation can be addressed.
Nursing Home Reform Act (NHRA) of 1987