Nursing Home Abuse Lawyer Cleveland OH
As nursing home negligence lawyers, we anticipate many inquiries about wrongful death claims arising out of coronavirus-related deaths in nursing homes, group homes, rehabilitation centers, and skilled nursing facilities. This is a new area for Ohio lawyers, however, some general principles of nursing home negligence law apply.
First, nursing home lawsuits arise pursuant to Ohio’s nursing home statute but are also classified as “medical claims,” subject to the same elements of proof as medical negligence cases. Under Ohio law, in order to prove a claim for professional negligence, the injured party (the plaintiff) must prove negligence and “proximate cause.” Nursing home negligence arises when a facility’s employees fall below-accepted standards of nursing care by delaying diagnosis, delaying treatment, providing improper treatment or otherwise failing to provide adequate safety precautions to protect patients. Some standards of care are set forth in Ohio nursing home statutes and regulations, while others are set forth in Medicare regulations. Nursing home negligence lawyers also look to the CDC, WHO and industry standards for infection control standards of care.
Proof of negligence will be difficult in coronavirus-related nursing home negligence and wrongful death cases. Unfortunately, due to the novelty of the Covid-19 virus, recognition of its communicability was delayed. Also, due to lack of a coordinated response by the federal government, conflicting information was par for the course. Certainly, few formal standards were implemented on an industry-wide basis. Short of black-and-white standards, a nursing home negligence lawyer will look to general standards of infection control. For example, the failure to quarantine sick patients and their caregivers may give rise to a claim.
Most infection-related wrongful death lawsuits are framed as delayed diagnosis cases. However, there is no cure for coronavirus. Treatment is supportive. Therefore, if there is a delay in diagnosis and treatment, it will be impossible to prove that earlier or more aggressive treatment would have changed the outcome.
In addition to negligence, a nursing home negligence lawyer must prove that the negligence proximately caused the resident’s death. Proximate cause is a challenging concept that is taught over several weeks during law school. In brief, proximate cause means that if the negligence had not occurred, then the injury would not have occurred. Stated otherwise, if proper care had been given, the nursing home resident would have lived. The plaintiff bears the burden of proving that it is more likely than not that the patient would have survived had proper precautions been taken.
In the setting of coronavirus-related wrongful death, there are two questions that must be answered to prove proximate cause. First, did the resident contract the infection at the nursing home? Second, did the coronavirus disease cause the patient’s death? Both of these questions raise potential controversies. For example, was the resident transferred from a hospital or residential home to the nursing home at a time when they may have brought the infection with them? Did the resident become infected by one of their own visitors? Did the resident become infected by an asymptomatic staff or untested staff member? Does the death certificate identify coronavirus as the cause of death? Is there a positive culture of the antibody test? In the setting of nursing home negligence cases, other respiratory illnesses are common causes of death, such as community-acquired pneumonia (CAP). How do you prove that the resident died due to a facility-acquired coronavirus?
Putting all of this together, any nursing home negligence case will be fact-specific Most claims will not be winnable due to problems with proof. A viable claim may exist in the case of a widespread outbreak at a particular facility followed by a failure to quarantine residents. This occurred at a nursing home in the State of Washington, resulting in a lawsuit. The theory of liability would be that the nursing home failed to quarantine infected patients and use infection control measures to isolate the virus and protect other patients. Even this theory will be problematic in that it will be difficult to prove the mode of transmission and the time of infection in order to identify those patients who should have been protected. It may also be difficult to prove the source of an exposure, particularly if visitors were allowed within the timeframe during which the patient likely became infected.
This area of law is new and evolving. At Mishkind Kulwicki Law, we are experienced in handling nursing home negligence and infection-related wrongful death lawsuits. If you lost a loved one to coronavirus and would like to discuss your concerns further, we are available for a free consultation. Just pick up the phone and call our nursing home abuse lawyer Cleveland, OH recommends. We would be happy to help.