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Nursing Home Abuse and Negligence During COVID-19

Chicago Lawyers Representing Injured or Neglected Elders

Nursing home populations are at great risk of being impacted by respiratory pathogens, including SARS-CoV-2, the coronavirus that causes COVID-19. The Illinois Nursing Home Care Act requires every long-term care facility to designate professionals who will be responsible for developing policies to control infections and diseases, such as COVID-19. It is important that those who run nursing homes take steps to protect their residents and stay aware of their residents’ higher risk of contracting COVID-19. However, in response to the pandemic, the governor of Illinois issued Executive Order 2020-19 in April 2020, along with later updates, that immunized nursing homes and health care facilities when they’re rendering assistance to the government’s response to the outbreak. There are certain exceptions. Because the Executive Order affects liability for nursing home abuse and negligence during COVID-19, you should consult the Chicago nursing home abuse attorneys of Katz, Friedman, Eisenstein, Johnson, Bareck & Bertuca if your loved ones were harmed.

Nursing Home Abuse and Negligence During COVID-19

The Illinois Nursing Home Care Act entitles nursing home residents to many different rights, including the right to be free from neglect or abuse. However, Executive Order 2020-19, which was reissued and extended in Executive Order 2020-33, grants civil immunity to health care volunteers, health care professionals, and health care facilities who render assistance to Illinois’ response to the coronavirus pandemic, except when the care provided during that time amounts to willful misconduct or gross negligence.

Skilled nursing facilities, assisted living facilities, supported living facilities and all government-operated sites that provide health care services established for purposes of responding to the COVID-19 outbreak are immunized under the Executive Order. The immunity is broad, since gross negligence and willful misconduct are tough standards to meet.

In order to receive this immunization, a nursing home needs to be rendering assistance in the state’s response to the COVID-19 pandemic. Rendering assistance includes conducting coronavirus testing, taking necessary steps to treat patients with COVID-19, preserving personal protective equipment, and increasing the number of beds. Legal immunity is only available if a nursing home has conducted the widespread and regular testing required under the Executive Order. However, there is also immunity to facilities that accept COVID-19 patients from other facilities that couldn’t provide service.

Nursing Home Abuse Lawsuits

If your loved one is a nursing home resident who was injured or died as a result of negligence at a nursing home during the COVID-19 pandemic, it’s important to seek legal representation and counsel. You may be able to bring a lawsuit for damages against the nursing home. An experienced lawyer will look at whether the nursing home had rendered assistance within the meaning of the Executive Order, such that it has achieved basic immunity under the Executive Order. However, even if there is immunity related to rendering assistance, the particular situation may fall within one of the exceptions due to a nursing home’s gross negligence or willful misconduct.

Gross Negligence and Willful Misconduct

The immunity provided under the Executive Order does not shield a nursing home from claims arising out of gross negligence or willful misconduct. Since the coronavirus pandemic and Executive Orders are new, it is not clear precisely what types of incidents will count as gross negligence or willful misconduct under the Executive Order. Generally, these are tough standards.

Gross negligence would likely apply to situations involving a nursing home’s course of conduct that displays conscious disregard for or total indifference to a person’s safety. For example, suppose a nursing home conducted the requisite testing and took other steps to meet the “rendering assistance requirement” but failed to have proper protocols in place and gave incorrect medications to a nursing home resident for two weeks until he or she died; a court may find that constitutes gross negligence.

Willful or wanton misconduct occurs if somebody acts with intentionally tortious or reckless behavior that physically harms a nursing home resident. For example, if a nursing home hired a known sex offender to staff the home during the coronavirus pandemic and that sex offender sexually assaulted an elderly resident, the court may interpret this conduct as falling within the meaning of willful or wanton misconduct.

Where willful and wanton misconduct is established, the Illinois Nursing Home Care Act allows punitive damages, along with compensatory damages, to be recovered.

Wrongful Death

If there is no immunity at the nursing home where your loved one lived, or there is immunity but your loved one died due to gross negligence or willful misconduct, it may be possible to recover wrongful death damages.

Hire a Seasoned Nursing Home Abuse Attorney in Chicago

Nursing homes in Illinois have long suffered from issues of neglect and abuse due to understaffing and undertraining. The coronavirus pandemic has increased the risks of these occurring. The Illinois Department of Public Health has found that 54% of all coronavirus-related fatalities occurred among residents of long-term care facilities. If you have a claim for nursing home abuse and negligence during COVID-19, you discuss your situation with Katz, Friedman, Eisenstein, Johnson, Bareck & Bertuca. Given the Executive Orders and the ordinary challenges of establishing abuse and neglect, it is critical to retain knowledgeable and tenacious attorneys to pursue your claims. We represent nursing home residents in Chicago, Rockford, Quincy, Champaign, and Aurora, along with Adams, Winnebago, Sangamon, Cook, and Kane Counties. Contact us at 312-724-5846 or complete our online form.