Nursing Home Litigation After COVID

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by, Lexicon Legal
In the aftermath of mandatory shutdowns due to COVID, courts across the United States are still contending with overcrowded dockets. Civil cases have been subject to even more bottlenecks than criminal cases because of the constitutional right to a speedy trial, these cases have been given priority, and civil cases have been pushed back even further. This will lead to logistical challenges in scheduling civil cases for trial that could last for years to come.
Additionally, the substance of civil cases will also be affected, particularly when it comes to nursing home litigation. In addition to the challenges of getting a court date and obtaining evidence, there are substantive legal issues that will also be affected by the COVID pandemic.


The legal definition of standard of care has not changed in 2021. Nursing homes (and the staff members whose actions they are responsible for) must still act with reasonable prudence in serving their residents’ needs. While the legal standard has not changed, the once-in-a-lifetime circumstances of COVID present a different factual context in which to meet this legal definition. The standard of care is different when a nursing home is faced with multiple crises at once. Staff members becoming ill with COVID, physical impediments to delivering care while social distancing and global shortages of PPE and other necessary supplies all affect what care is “reasonable” for a nursing home to provide. Decisions that might have breached the standard of care under ordinary circumstances, like delaying a routine check of medically stable patients, could be considered reasonably prudent during COVID, when every contact with a patient exposed the caregiver to the risk of contracting a deadly virus. Many of these operational decisions were made at times when there was not yet enough reliable information available about COVID. That too is a critical factor in evaluating whether a care provider’s actions were reasonable.
There is not yet a robust body of settled case law or revised statutes on this point. Until the law is better established, litigators will have to take their cases to juries and let their peers decide whether the standard of care was met under all the limitations presented by COVID. This means that clients who choose not to settle will face more unknowns – and thus more risk – at trial.


With many civil courts across the country facing backlogs of civil cases that could persist for months, or even years, litigators will have far more incentive to settle cases. Clients who would have been unwilling to settle their cases may reconsider when they learn that there will not be a resolution to their case any time in the immediate future. Settlement can also provide certainty in cases with untested legal issues – such as how the standard of care will be affected by COVID. Litigators should be prepared to engage in honest settlement efforts that are supported by robust discovery. This process can help clients achieve more control over an outcome that was faster and less expensive to obtain than waiting for a trial date.


You may have noticed shortages of random products and services throughout the pandemic, and while the “Great Toilet Paper Shortage” might be amusing in hindsight, there are far more pressing concerns for litigators trying to obtain admissible evidence for trial. Statistical data that is routinely released from government agencies or nonprofit organizations could be delayed due to labor shortages and mandatory shutdowns. Expert witnesses could find themselves overbooked with a rush of cases on a particular COVID issue. Both expert and lay witnesses may be unwilling to travel and litigators may have to contend with their own labor shortages due to financial constraints, or employees becoming ill with COVID. COVID has had far-reaching consequences in all areas of business. Litigators trying to prepare a case for trial in the wake of a global pandemic may find it difficult to obtain the admissible evidence needed.


Like many aspects of life, it is likely that litigation will never be quite the same as it was before the COVID pandemic. Judges, attorneys, and court administrators will have to adjust to all kinds of changes to the civil litigation process. Guidepoint Legal Solutions can help lawyers manage the logistical, procedural, and substantive legal changes that arise as the world recovers from COVID-19. With our extensive network of expert witnesses in a broad range of fields, we can help you find dependable experts who are able to advise on your case, even with the pandemic-era challenges. Whether you represent injured plaintiffs or defend nursing home administrators, Guidepoint can connect you with the tools you need to deliver results for your clients. Contact us today to learn about how our services support can help you obtain the most favorable outcome available.
Please note: This article contains the sole views and opinions of Lexicon Legal Content and does not reflect the views or opinions of Guidepoint Global, LLC (“Guidepoint”). Guidepoint is not a registered investment adviser and cannot transact business as an investment adviser or give investment advice. The information provided in this article is not intended to constitute investment advice, nor is it intended as an offer or solicitation of an offer or a recommendation to buy, hold or sell any security. Any use of this article without the express written consent of Guidepoint and Lexicon Legal Content is prohibited.

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