Our Family Lost a Loved One Who Was in a Nursing Home and Contracted COVID-19. Do We Have Any Legal Options For Suing the Nursing Home?
The COVID-19 pandemic affected everyone’s lives in different ways. For residents of South Carolina nursing homes, however, the pandemic exposed them to unique risks. The result was that thousands of residents across the state died of COVID-19 caught at a nursing home. This raises an important legal issue for the family members of these residents. More specifically, can a family pursue a wrongful death claim against a nursing home based on a transmitted case of COVID-19?
The answer to this question, however, is not clear. This year, South Carolina lawmakers introduced SB 147, also known as the South Carolina Covid-19 Liability Safe Harbor Act (“The Safe Harbor Act”). On April 28, 2021, Governor McMaster signed SB 147 into law. Under the Safe Harbor Act, businesses, including nursing homes, enjoy broad immunity from lawsuits stemming from the transmission of COVID-19. However, the Safe Harbor Act does not provide immunity from all Covid-related claims. Nursing homes can still be liable if they fail to take the necessary precautions to avoid the spread of the virus.
According to Section 9, this law applies only until June 30, 2021 or 180 days after the state of emergency is lifted. The law applies to causes of action occurring between April 28, 2021 and December 4, 2021. Now that the law is more stringent towards nursing home facilities, nursing homes hold a greater responsibility to protect residents from Covid-19 exposure.
There are two ways a nursing home can be liable for a resident’s Covid-related death. First, if the facility was “grossly negligent, reckless, intentional or willful” in causing the resident’s death. The second way to get around the Safe Harbor Act is to show that the nursing home failed to make any attempt to adhere to the public health guidance available at the time.
Most nursing homes are considered “health care providers” because they provide some medical services to residents. If so, evidence of either of the above-listed exceptions must be proven beyond a preponderance of the evidence. However, families should expect that nursing homes will argue they are not healthcare providers, in which case, the Safe Harbor Act requires a family to prove an exception by clear and convincing evidence—a much higher legal standard.
Notably, the Safe Harbor Act and liability related to COVID-19, in general, is a new issue for the courts. Thus, the court system has not yet had the opportunity to determine precisely what constitutes an exception to the broad grant of immunity. Since Section 9 makes it easier to bring Covid-19 Nursing Home cases, anyone considering filing a wrongful death claim against a nursing home should reach out to a dedicated South Carolina personal injury and wrongful death lawyer for immediate assistance.
Have You Lost a Loved One to COVID-19 Due to a Nursing Home’s Failure to Prevent the Spread of Covid?
If you believe that your loved one’s COVID-19 diagnosis and subsequent passing was due to the negligence of a nursing home, contact the South Carolina nursing home wrongful death lawyers at the Steinberg Law Firm. At the Steinberg Law Firm, we have been on the cutting edge of nursing home neglect and personal injury law for more than 90 years and have earned a reputation for being honest, aggressive, and dedicated advocates. As the country continues to deal with the challenges presented by the pandemic, Steinberg Law Firm is here to support you however we can. Call the Steinberg Law Firm at 843-720-2800 today to learn more about our firm and schedule a free consultation. Or you can connect with our personal injury lawyers through our online contact form.