As the coronavirus pandemic sweeps through our nation, nursing homes and assisted living facilities have been hit especially hard. The proximity of residents means that COVID-19 can spread quickly through these facilities. And because these residents are typically older with underlying medical conditions, the disease is more likely to be fatal in them than in younger, healthier COVID-19 patients.
Who Can Bring a Wrongful Death Case in California
The California Code of Civil Procedure governs wrongful death claims in California. Section 377.60 determines who has the right to bring a wrongful death claim. Bringing a claim starts with the surviving spouse or children of the person who died.
If no spouse or child is living, the claim can be brought by the persons “who would be entitled to the property of the decedent by intestate succession”. Intestate succession is the legal doctrine that determines who inherits when a person dies without a will. It starts with close relatives, then moves to further relatives, and continues until someone is found.
If there are dependents, they too might be able to bring a wrongful death claim. California law allows minors who resided with the decedent for 180 days before the death to bring a wrongful death claim. The minor must prove that he or she was dependent on the decedent for one-half or more of the minor’s support.
How to Prove a Wrongful Death Case in California
In a wrongful death case, the plaintiff must prove that: (a) the defendant was negligent, and (b) this negligence caused the wrongful death. Coronavirus cases can present certain challenges in proving these elements.
To win a wrongful death case, the plaintiff must prove that the defendant breached his or her duty of care to the plaintiff. The care that is due is that of the “reasonably prudent person.” If the defendant was not reasonably prudent, then he or she breached the duty. This type of breach is known as negligence.
In cases of nursing home neglect, the plaintiff will usually sue the facility (and its parent company, if there is one). This is because the facility was negligent in allowing its staff to abuse, neglect, or otherwise mistreat the patient. In some cases, negligence is obvious.
But negligence is not always so easy to prove. Consider the coronavirus: it is invisible, and spreads through the most casual human contact. It has been difficult for anyone to stop the virus in any setting.
Proving that Negligence Caused the Wrongful Death
Another challenge with wrongful death cases related to the coronavirus is causation. In any wrongful death case, the plaintiff must prove that the defendant’s negligence caused the wrongful death. In some cases, this is obvious. For example: when a car accident victim succumbs to her injuries, there is little doubt that the death was caused by the negligent driver who was at fault for causing the accident.
COVID-19 is less obvious. It is not always clear when or how a patient was exposed to the coronavirus. If a COVID-19 victim is not exposed to the virus in a nursing home, then the nursing home cannot be held responsible for causing that patient’s death. Because the virus is microscopic and easily transmitted, it can be nearly impossible for patients to prove when and how they were exposed to it.
This does not mean that nursing homes cannot be held responsible for causing coronavirus deaths. If, for example, a patient was quarantined inside an assisted facility during the statewide shutdown, then there is no other place he or she could have been exposed to the coronavirus. This will be strong evidence of causation.
Coronavirus presents many new legal issues that have never before been addressed in the courts. This will present certain challenges to coronavirus patients who intend to pursue a personal injury or wrongful death claim. Do not be deterred from pursuing a claim due to these difficulties. You still have the right to be compensated by anyone whose negligence caused you injury or death.
The Increased Risk of Being Exposed to COVID-19 in an Assisted Living Facility
It has been well established that residents of nursing homes and assisted living facilities are at a greater risk of being exposed to the coronavirus. In mid-April, the New York Times reported that at least 6900 patients had died of the coronavirus in nursing homes across the country. This number will continue to climb as the pandemic drags on.
Because this is a known risk, nursing homes and assisted living facilities have an obligation to take reasonable steps to protect residents from the coronavirus. But what, exactly, is reasonable? This is a question that has never before been presented in the courts of the United States.
Until then, the Centers for Disease Control has issued guidelines specific to long-term care facilities and nursing homes. These include:
- Educating residents, healthcare staff and visitors on methods of reducing the spread of COVID-19
- Evaluating and managing staff members who show symptoms of COVID-19
- Enforcing safety policies and procedures with all visitors
- Providing all necessary supplies for infection prevention and control
- Dedicating space in the facility for residents who present symptoms of COVID-19
- Evaluating and managing the medical needs of residents who shows signs of COVID-19
- Canceling communal and group activities
- Reminding residents to practice social distancing and proper handwashing techniques
- Having residents wear a face mask or cloth face covering when they leave their room
Guidelines and recommendations have also been issued by the Centers for Medicare and Medicaid Services (CMS). There are very few care facilities in the United States that do not rely on reimbursement from Medicare or Medicaid programs. This means that almost all care facilities should stay current on the information provided by CMS, which recommends the following:
- Following the extensive infection control guidelines issued by CMS (including self-assessment to determine compliance)
- Every individual entering the facility (resident, staff or visitor) should be screened for coronavirus symptoms and have their temperature checked
- Screening stations should be put up at every accessible entrance
- Every resident should be assessed for COVID-19 symptoms and have their temperature checked daily
- Separate staffing teams should be used to care for residents who have contracted COVID-19
These are relatively simple steps that any facility should manage to implement without delay. They are also information that has been made available to the public by the CDC and CMS, so there is no reason why any facility should not be aware of these recommendations. Failure to implement these simple, publicly-available recommendations could be strong evidence that a care facility was negligent in managing COVID-19 amongst its residents.
Wrongful Death Claims for Nursing Home Staff Members
Coronavirus does not just infect the residents of care facilities. Staff members are also placed at an increased risk of exposure in these highly infectious locations. Workers who are exposed to the Coronavirus on the job are entitled to workers’ compensation benefits. Surviving family members are also entitled to death benefits when a worker dies from COVID-19 exposure that occurred in the workplace.
It might be difficult for workers to prove that they were, in fact, exposed to the coronavirus while working in a nursing home. But many state and federal guidelines are creating a presumption that workers in high-risk industries (such as first responders and health care professionals) were exposed on the job in order to make it easier for them to access workers’ compensation benefits. This is yet another unsettled issue of law that could lead to improper claim denials for workers’ compensation insurance carriers. But it is important for workers exposed to the coronavirus and surviving family members to fight for workers’ compensation benefits.
The Future of COVID-19 Wrongful Death Claim in California
It is too early to say for certain how wrongful death claims related to the coronavirus will be resolved by California insurance companies, courts, and juries. But it is still important for coronavirus victims and their families to fight for the legal right to compensation. Wrongful death claims serve an important role in the United States.
Regardless of the specifics about the law, it is important to demand accountability in this time of crisis. Nursing homes and assisted care facilities must take reasonable steps to protect our elderly loved ones. Insurance companies must see that they cannot automatically deny claims related to coronavirus.
Call Us Today to Speak to a California Wrongful Death Attorney About Your Case
Coronavirus presents many unique legal issues that will be battled in the courts for years to come. This should not stop COVID-19 patients from pursuing their right to be compensated for personal injuries or wrongful deaths related to the disease. Call (888) 488-1391 to schedule your free consultation with an experienced California wrongful death lawyer at Arash Law. Our experienced personal injury attorneys have over twenty years of experience. We have collected over 200 million dollars for clients in San Francisco, Riverside, San Jose, San Diego, Sacramento, Sherman Oaks, and throughout California. Don’t delay – the sooner we can begin investigating your claim and preserving evidence, the better protected your legal rights will be.