Nursing Home Residents' Rights During the COVID-19 Pandemic
With New York having emerged as the epicenter of the COVID-19 pandemic in the United States, all New Yorkers are facing frightening and uncertain time—but perhaps none of us more than those in nursing homes or with loved ones in nursing homes.
Nursing home residents—who are generally elderly, facing chronic health issues, or both—are among the populations most vulnerable to the novel coronavirus. Well over 700 nursing home residents in New York State have already died from the disease—about one out of every seven COVID-19 deaths statewide. Although the State has refused to disclose information about cases at specific facilities, anecdotal reports have surfaced of significant clusters of cases at particular nursing homes, including at least one facility where dozens of residents have tested positive. Nursing home workers and residents’ families have sounded the alarm about insufficient personal protective equipment for staff and inadequate isolation protocols to prevent spread among vulnerable patients.
What does the law say about nursing home care standards? Pandemic or no, every resident of a nursing home in New York is entitled to certain rights and protections. The State’s Nursing Home Bill of Rights guarantees all residents quality care and treatment, protection from abuse and neglect, dignity and respect, clear and meaningful procedures to address complaints, and the ability to exercise rights without retaliation.
State law also includes a powerful remedy when nursing homes fail to live up to their responsibilities. Under Section 2801-d of the New York Public Health Law, if a nursing home violates “any right or benefit created or established for the well-being of the patient by the terms of any contract, by any state statute, code, rule or regulation or by any applicable federal statute, code, rule or regulation,” a resident (or someone acting on her behalf) has the right to file a lawsuit. Because the law permits lawsuits based on the violation of State nursing home regulations, any breach of infection control requirements—which include isolating infected residents, cleaning and sterilizing equipment, properly sanitizing linens, and even mandatory hand-washing—could give rise to a claim, if it causes harm to a resident.
This strongly written law allows patients to sue for money as compensation for physical or emotional harm, death, or financial loss. Residents can also seek an injunction, or a court order requiring the nursing home to comply with care standards. The law even guarantees that patients who sue successfully will receive a minimum payment as damages, with the amount determined as a percentage of the rates the facility charges its patients. It also protects Medicaid recipients from losing coverage if they recover money in a lawsuit that could otherwise affect their eligibility. In addition, the court has the power to require that the nursing home pay its patient’s legal fees for a successful suit, which may encourage lawyers to take on such cases even where the resident’s family cannot afford to pay upfront.
Anyone considering their legal options to address a coronavirus-related issue at a nursing home in New York should consult an attorney. Proving these cases can be complex, and a nursing home may avoid liability by showing that it exercised reasonable and appropriate care to prevent and limit harm to its residents. Recent executive orders suspending certain state laws and regulations due to the COVID-19 outbreak may also complicate these claims, as the law contains an exemption where the decision to deviate from rules and requirements has been “expressly authorized by the appropriate governmental authority.” The New York legislature has also passed a law granting healthcare workers immunity from certain kinds of coronavirus-related claims.
If you or a loved one has been exposed to COVID-19 at a nursing home in New York, contact KLLF for a free attorney consultation. We can help you consider all available options and achieve the best possible outcome for your family during this difficult time.
Disclaimer: This post is meant to inform the reader about the state of the law. Nothing in this post is intended to nor does create an attorney-client privilege, convey legal advice, or guarantee any outcome in a legal matter.