Nursing Home Sued For Gross Negligence
The new COVID-19 liability shield will prevent most lawsuits against nursing homes. The simple negligence standard has been replaced with a gross negligence standard. Plaintiffs now have to prove that the nursing home was not in “substantial compliance” with CDC regulations. How would a lawyer go about doing that? One case from Illinois could be revealing.
Illinois Nursing Home Sued for Gross Negligence
A nursing home is being sued for gross negligence after the death of one of its patients from COVID-19. Four other patients were COVID-positive at the time of the resident’s death. However, like Florida, COVID-19 lawsuits are barred by temporary statutes. Now, the question before the court is: Should this lawsuit be dismissed or be allowed to proceed as a matter of law?
The plaintiffs have taken the stance of alleging that the nursing home was grossly negligent. This is precisely the argument that a Florida plaintiff will have to make when the new COVID protections go into effect. The lawsuit will be watched closely as it could provide precedent for allowing COVID lawsuits to proceed despite immunity protections.
The Allegations
The plaintiffs contend that the resident’s death was the result of “gross negligence” and “willful and wanton neglect.” These allegations are supported by inspections performed by the offices of Medicaid and Medicare citing the nursing home as being out of substantial compliance with even pre-COVID measures. Since the 1-star rated nursing home did not take any active measures to respond to the pandemic, attorneys for the plaintiffs argue that they should not be offered immunity.
While COVID-immunity measures are not supposed to help bad actors shirk their liability, this is a case where the fate of a lawsuit against a 1-star rated nursing home with 14 citations is arguing that they should be protected under the current law.
The text of the federal law states that medical providers are shielded from liability in regard to any pandemic countermeasure. In other words, if they take a measure to counter the pandemic, that measure cannot form the foundation of a lawsuit against them. But what if they took no measure at all or the countermeasures they took were far less than CDC recommendations? That’s where lawyers for the plaintiffs are attempting to ground their legal footing.
Finding Gross Negligence
So, in Florida, state law doesn’t supposedly help bad actors shield themselves from liability. Instead, it forces plaintiffs to show that the health care provider failed in its duty of care to respond to the realities of the pandemic. Lawyers will have the option of combing through the nursing home’s recent history to show that the home failed several health inspections. Those citations could prove vital in bringing justice to grieving families.
Talk to a Tampa Nursing Home Attorney Today
If your loved one has been injured in a nursing home, call the Tampa personal injury attorneys at The Matassini Law Firm today to schedule a free consultation and learn more about how we can help.
Resource:
medicare.gov/care-compare/details/nursing-home/145610?id=0cbd9c2e-5d17-45fb-9457-9cc26935ad7e&city=Normal&state=IL&zipcode=61761&measure=nursing-home-health-inspections
