Is a COVID-19 death in a California nursing home grounds for an elder abuse lawsuit?
As COVID-19 spreads throughout the US, elderly residents in nursing homes are in danger. When the pandemic hit, many nursing homes in California failed to take action to protect their vulnerable residents. These same nursing homes often have histories of poor infection control, citations for abuse and neglect, and diminished oversight. The nursing home could have prevented many deaths with better training, staffing, and hygiene procedures. Many states have limited nursing homes’ civil liability for corona virus-related injuries and deaths. California is not one of those states.
What is elder abuse and neglect in California?
California defines civil elder abuse as physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering, the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering, and financial abuse. COVID-19 left elders in nursing homes more isolated and afraid. Many nursing homes deprive elders of basic human contact. The residents suffer in complete silence with little to no oversight by authorities.
The pandemic has exposed long-standing nursing home abuse and neglect
A nursing home in Minnesota, North Ridge Health and Rehab, had seen huge death numbers. In April, Leonard “Smokey” Novak’s children visited him. Shortly after, he died. By late June, 73 residents had succumbed to the virus. “The toll was so devastating that some North Ridge employees began to refer to the sprawling, three-building brick complex as ‘Death–Ridge.’”
At “Death Ridge,” an infected staff member worked in the facility for two weeks until he/she was tested. By that time, Smokey Novak had died and tens of other residents were infected. Many of the nursing homes with high COVID-19 death rates have long histories of citations for unsanitary conditions, failure to wash hands, and failure to clean equipment. Many nursing homes are understaffed and staffed with low-paid, often unqualified workers that buckle under the stress of caring for too many patients. Mixed with the COVID-19 pandemic, nursing homes have turned into infection powder kegs.
Does California have a “liability shield” to prevent elder abuse and neglect lawsuits due to COVID-19?
Many states have enacted a “liability shield” to protect nursing homes from civil liability from COVID-19 injuries or deaths. There are some exceptions, but these shields act as huge deterrents. Many of the states that have liability shields grant exceptions for gross negligence, intentional or reckless misconduct, and criminal conduct. Additionally, many people have brought lawsuits against states to challenge the validity of the liability shields. Is this horrible? Yes, it is. But, thankfully, California has not enacted a liability shield to date.
A recent elder abuse case ruling in California limits certain damages
In an elder abuse case, many types of damages are available including economic damages and punitive damages. For one cause of action, violation of a “patient rights”, new laws limit one from of damages only. On August 17, 2020, the California Supreme Court, in Jarman v. HCR Manorcare, Inc., No. S 241431 (Aug. 17, 2020), construed California’s long-standing Long-Term Care Act to limit statutory liability for regulatory violations. Because of this, many nursing homes consider this ruling a victory, even if it is mostly symbolic.
So, what types of damages are limited by Jarman? Health and Safety Code Section 1430(b) provides the answer. Specifically, residents of skilled nursing and intermediate care facilities have the right to bring a legal action for violations of their “patient rights.” The statutory penalty for a violation of “patient rights” was $500 plus attorney fees. However, plaintiffs’ awards often carried a multiplier or result in a $500 award for numerous violations. Some plaintiffs would request $500 for each day their loved one stayed at a nursing home. In those cases, the total damages for patient rights was sometimes over $100,0000. The Jarman case changes this. Now, the statutory penalty of $500 for Patients’ Bill of Rights violation is per cause of action, rather than per each individual violation.
What does the Jarman Case Mean for Plaintiffs’ elder abuse Cases in California?
Nursing homes and their corporate and political allies think that the Jarman case may be a sign that California Courts will be less sympathetic to plaintiffs’ elder abuse cases, especially during the pandemic. California victims are filing lawsuits against nursing homes on the grounds that the nursing home’s negligence led to a resident’s COVID-19 related death. And where a nursing home has a history of citations for abuse or neglect, a COVID-19 outbreak likely is just a symptom of its pattern of placing profits over people.
What if my loved one died of COVID-19 in a California Nursing Home?
As of November 29, 2020, the CDC has reported that there have been 377,510 Covid-19 cases in nursing homes and 76,542 reported deaths. This number is atrocious. If you or your loved one has been the victim of a COVID-19-related injury or death in a nursing home, call Warren Major LLP for your complimentary consultation at 415-286-5440.