Are California Nursing Homes Protected from Covid-19 Liability?

Over 41 percent of the coronavirus deaths in California come from nursing homes and those cases continue to increase. Should such facilities be immune from legal liability?

Quality of Coronavirus Care at California Nursing Homes

By and large, nursing homes do an excellent job of taking care of your loved ones. About 80 percent of such facilities show no Covid-19 infections, according to Kaiser Health News (KHN). However, not all homes are created equal. KHN discovered some troubling differences between homes with infections and those without.

• Nursing homes with infections had 20 percent more residents than those without. More people in a confined space increases the risk of contracting the virus.
• Overall star ratings were 20 percent lower. Star ratings for health inspections were also 20 percent less.
• The number of registered-nurse hours per resident was 25 percent lower with the average star rating for nursing staff at 17 percent less.
• About 43 percent more of the infected facilities have been fined by the federal government. Their average number of complaints was a whopping 61 percent higher.

In short, nursing homes with Covid-19 cases suffered from poorer quality than their disease-free counterparts.

Legal Immunity from Covid-19

Despite or because of these factors, nursing home operators have petitioned Governor Gavin Newsom to push through an executive order that would free them from all civil and criminal prosecution during the pandemic. Not only would the order shield them from any liability related to Covid-19 cases or deaths but it would also prevent their prosecution for elder abuse claims.

The industry already avoids going through the courts and the publicity of jury trials by requiring residents to agree to arbitration clauses. Those clauses give eldercare facilities control over the complaints and obscures any hearings from public view. Grievances and settlements never appear on any public record, making secret any violations of patient rights. Prospective and current residents have no way to uncover past offenses.

The order now on the governor’s desk makes the situation worse for patients by preventing them from suing a nursing home unless they can demonstrate that the provider orchestrated intentional misconduct. Such proof is almost impossible to deliver in a civil case. In addition, such an order increases the risk of harm to a population that is already more vulnerable to the virus.

What You Can Do

We strongly believe that nursing homes and eldercare facilities should remain legally liable for any wrongdoing whether or not such misconduct is related to Covid-19. We ask you to urge the governor not to sign the order by contacting him and your elected representatives.

If you feel that your loved ones have contracted or died from the coronavirus due to neglect from their nursing home, then it remains liable for now. No matter what contracts or arbitration clauses you or your family may have agreed to, you still have rights. Please contact us right away to determine how the facility is responsible and what liabilities it faces.

Disclaimer: The medical content of this blog is provided for information only and is not intended as medical advice or substitute for the advice of a physician.

REFERENCES

https://www.mercurynews.com/2020/05/06/editorial-newsom-falters-as-covid-19-nursing-home-cases-soar/

https://khn.org/news/covid-plagued-california-nursing-homes-often-had-problems-in-past/

https://www.sfchronicle.com/opinion/openforum/article/Gov-Newsom-don-t-give-legal-immunity-to-15232970.php