The operators of assisted-living and nursing home facilities have certain duties and responsibilities with regard to protecting residents and patients from potential sources of injury or abuse. They must put appropriate measures in place to protect against falls, ensure residents don’t suffer from malnutrition or dehydration, and ensure that they get proper dosages of necessary medications.
As the COVID-19 pandemic sweeps the globe, the medical and scientific evidence indicates that older individuals and health-compromised persons are more susceptible to the virus. It’s therefore important to identify the duties nursing homes and nursing home operators have to prevent or minimize the risk that coronavirus will spread to their institutions. What must the owner or operator of such a facility do to safeguard residents?
First, it’s important to understand that the duties of nursing home operators are not absolute. A nursing home or assisted living facility cannot prevent all deaths, and likely won’t be able to absolutely avoid some exposure to various viruses, including COVID-19. The duty imposed on owners and operators is one of reasonable care—to take reasonable steps to minimize risk of infection or exposure.
The American legal system does not set forth the definition of “reasonable care” in a statute or written law; it’s determined by the finder of fact (typically the jury) on a case-by-case basis. A principle of American law known as “stare decisis” (Latin for “let the decision stand”) requires juries to give weight to prior rulings on the same issue. That means a jury is required to abide by prior court rulings defining what is or is not considered reasonable.
So what must a nursing home owner or operator do to protect residents from a virus? The answer—take reasonable steps to protect residents. That may mean closing the facility to all visitors, including family, as many institutions have done. It may mean requiring all employees to wear masks and gloves, maintain appropriate social distancing, and use hand sanitizer. Ultimately, though, what constitutes reasonable behavior in this situation will be determined by a jury.
Can you take legal action if a loved one in a nursing home contracts COVID-19? Yes, but you’ll have to show that the nursing home failed to use reasonable care to protect the resident.
