An illness spreads through a nursing home . . . some of the possible issues and legal issues to evaluate . . .
Note that the following is not a legal analysis, nor is it a complete list as each situation and case is different depending on the facts and circumstances. But the following are possible legal issues that do come to mind when an illness spreads through a nursing home – the following are not in any particular order.
First and obviously the concern is for the residents and both their immediate and their future health, safety and well-being. It goes without saying that residents in nursing homes are at risk physically, medically, emotionally, and mentally, and that they are significantly dependent on the good and appropriate actions of other people for their well-being.
Then there are legal issues. The following are some that come to mind, but, again, each situation is different:
-The facts of the situation.
-The optics of the situation – how do the situation and the response appear to an average person and to the various professionals and professions that are or should be or could be involved? The optics of the situation run through each of the items that are listed below.
-Are there appropriate preventative and responding processes in place?
-Were the appropriate preventative and responding processes followed?
-What standard(s) of care are applicable:
Standard(s) of care in the community and industry.
Applicable statutes, regulations, rules, policies, and procedures. Many statutes, regulations, etc. have been enacted that apply to and regulate nursing homes.
-Is there negligence?
-Is there gross negligence?
-Is there neglect or abandonment, as we have seen in some news situations where people in charge and control did little or less than what they should have and could have done?
-Is there elder or dependent adult abuse? Consider medical malpractice v. elder abuse – it depends on the facts and circumstances.
-Is there sufficient diligence, or a lack thereof?
-What preventative processes were in place and utilized as required by law, as required by the standard(s) in the community and industry, or that are discretionary and available and that were or were not used?
Although this post does not consider possible criminal liability with respect to risk management and compliance programs, from my other blog http://auditcommitteeupdate.com consider the Department of Justice, April 2019, Evaluation of Corporate Compliance Programs if it was applied to the nursing home’s risk management and compliance processes, and the three primary headings or sections that are listed and discussed by the Department of Justice:
- Is the Corporation’s [i.e., Nursing Home’s] Compliance Program Well Designed?
- Is the Corporation’s [i.e., Nursing Home’s] Compliance Program Being Implemented Effectively?
- Does the Corporation’s [i.e., Nursing Home’s] Compliance Program Work in Practice? And with respect to this third section, the question is asked: how does the Corporation [i.e., Nursing Home] reasonably know, before the risk actually occurs, that the risk management and compliance processes in place will work? How has actual effectiveness been evaluated or tested beforehand so that it is reasonably known and believed that effective risk management and compliance processes are in place?
-What red flags became known or should have become known?
-What were the responses to red flags and/or facts that became known or that should have become known?
-What, if any, reporting requirements existed, and were they complied with in terms of the health, safety, and well-being of each resident?
-What requests for needed outside assistance were made?
-How was the adequacy and how is the sharing of information to family members, the outside, and others, or is there secrecy, misinformation, partial significant information, delayed information, hush/hush, etc.?
-Is there responsibility and liability for:
The nursing home;
Nursing home officer personal liability;
Nursing home director personal liability;
Nursing home medical director personal liability;
Nursing home director of nursing personal liability;
Nursing home assistant personal liability; or
Personal liability for other people who are employed by the nursing home?
-Are the situation and wrongdoing egregious – in addition to liability, should there be punishment?
-Has the nursing home basically done a good job for each resident and with respect to their health, safety and well-being?
Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.
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Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only.
I am also the Chair of the Business Law Section of the Bar Association of San Francisco.
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