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NY Nursing Home COVID Controversy Continues

NY Nursing Home COVID Controversy Continues

September 23, 2021 | Personal Injury

Largely depending on your perspective, nursing home data recently provided by the New York State Health Department either exonerates these facilities or condemns them.

Coronavirus was “a perfect storm” for nursing homes, explained UMass Professor William Miller.

“You have extremely vulnerable residents living in a congregate setting being served by people who come in from the community.”

Indeed, over just the first few months of the pandemic, officials found serious violations at 16 percent of the long-term care facilities on Long Island.

An elderly advocate sounded the alarm, calling the violations “serious and basically fundamental issues.” However, a nursing home advocate said the statistics proved the facilities did “an amazing job” protecting residents from infectious disease.

Former Governor Andrew Cuomo resigned from office in part over allegations that he intentionally undercounted COVID nursing home deaths and took other steps, such as a lawsuit immunity executive order, that unfairly favored nursing home owners.

Types of Nursing Home Neglect

The coronavirus has dominated the nursing home safety headlines since early 2020. Nursing home residents and staffers, mostly residents, accounted for about a third of the coronavirus deaths in the United States.

Negligence, or a lack of care, undoubtedly caused a number of these deaths. Examples of nursing home coronavirus negligence include a failure to sufficiently identify and isolate infected persons and failure to exclude all visitors.

However, COVID-19 is just one potential nursing home neglect area. Other areas, which are often related to inadequate staffing, include:

  • Malnutrition: It’s hard to believe that malnutrition is a problem in long-term care facilities, but it is. As we get older, our senses degrade. That includes not only sight and hearing, but also smell and taste. Since food no longer smells or tastes good, many residents simply don’t eat. Frequently, there are no staffers roaming through dining rooms to ensure that residents eat what they are served.
  • Resident-on-Resident Assault: Somewhat similarly, when residents gather in common areas, petty disputes over trivial items, like a preferred spot at the staring window. Unless a staff member breaks up these arguments, they often become violent. So many nursing home residents are so physically frail that a tiny bit of force could cause a serious injury.
  • Falls: Largely because of New York’s rapidly aging population, many of the state’s nursing homes are almost constantly being renovated or expanded. Such construction zones are especially dangerous for nursing home residents who, as mentioned, have degrading senses and are thus unable to avoid many fall hazards, like an uneven floor or a wet spot.
  • Bedsores: Pressure ulcers usually cannot form if the person turns over in bed at least once every two hours. But many residents are so strongly medicated, or so frail, that they cannot turn themselves over. In understaffed environments, overnight and weekend rounds are usually one of the first places that nursing home administrators cut back.

Roughly 90 percent of New York nursing homes are dangerously understaffed. Resident-to-caregiver ratios are alarmingly high in many situations. Additionally, in understaffed environments, employee morale is usually quite low.

Proving Neglect in Court

Obtaining fair compensation in a nursing home neglect case is basically a two-step process for a New York personal injury attorney.

Most negligence cases begin with a legal duty, and nursing home neglect is no exception. In a premises liability claim, like nursing home neglect, the duty of care varies, usually depending on the relationship between the victim and owner.

Generally, the nursing home owner has a duty of reasonable care. That’s because nursing home residents are invitees.

These individuals have the owner’s permission to be at the facility, and their presence benefits the owner. This benefit is normally economic.

Briefly, the duty of reasonable care includes a responsibility to make the area safe, as well as a responsibility to continually maintain this high standard.

Additionally, a victim/plaintiff must prove that the nursing home owner knew, or should have known, about the fall, malnutrition, or other injury hazard. This evidence could be:

  • Direct: Smoking guns, like restroom cleaning reports and prior injury reports, usually surface during a lawsuit’s discovery period. Direct evidence of actual knowledge is very difficult to successfully challenge in court.
  • Circumstantial: Indirect evidence of constructive knowledge (should have known) usually involves the time-notice rule. A banana peel on the floor is a good example. If the peel was black, it had probably been on the floor for some time, and someone should have picked it up.

In both situations, the burden of proof is a preponderance of the evidence (more likely than not). That’s well below the standard of proof in criminal court. So, in a civil damages claim, a little proof goes a long way.

These damages usually include compensation for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.

Nursing home neglect comes in many forms. For a free consultation with an experienced personal injury attorney in New York, contact Napoli Shkolnik PLLC. We do not charge upfront legal fees and only recover a fee if we are successful with your case.

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