As the COVID-19 pandemic swept through the nation in early 2020, one fact that became clear to us all was that the elderly population, especially those residing in nursing facilities, were disproportionately impacted. Around 140,000 residents and staff of nursing facilities have died from COVID-19 and there have been over 1.3 million confirmed resident/staff cases reported by nursing facilities. At the peak of the pandemic, during the week ending Dec. 20, 2020, there were 33,775 COVID-19 cases in nursing facilities and 6,073 deaths. Fortunately, since the end of December, there has been a steady decline in both cases of confirmed COVID-19 and COVID-19 related deaths in residents and staff. For the week ending Oct. 10, 2021, there were 3,551 cases and 471 deaths reported in nursing facilities.

Allegations of Negligence & Wrongful Death

Nursing homes have seen a wave of complaints alleging negligence and wrongful death as a result of purportedly failing to protect residents from contracting the COVID-19 virus. The number of healthcare COVID-19 related wrongful death complaints filed has doubled over the past six months. As of Oct. 25, 2021, over 12,575 complaints related to COVID-19 have already been filed in US Courts, according to the daily tracker kept by the law firm of Hunton Andrews Kurth, with New York, California, and Florida having the most complaints filed. 501 of the complaints filed were related to healthcare (48 malpractice, 337wrongful death, 12 right to visit nursing home patients, and 104 other healthcare related).

Over half of states have some measure of COVID liability protection or have pending legislation aimed to protect businesses or healthcare facilities from liability related to someone contracting COVID-19, unless the provider or facility failed to act or acted with willful misconduct or gross negligence. Gross negligence typically requires demonstrating deliberate or reckless disregard for a resident’s health and safety, which is a higher standard than simply showing that the facility did not follow the common standard of care.

The chronology of actions taken by facilities to prevent or minimize the spread of COVID-19 are crucial in establishing or defending willful misconduct or gross negligence in COVID-related wrongful death cases. Join us next week for Part 2 of the Fundamentals of Defense webinar training to learn more about COVID-19 litigation and how to defend your facility against wrongful death suits related to COVID-19 and elopement, as a continuation from our September Fundamentals of Defense session (part 1), now available on demand, which addressed wrongful death suites related to Falls and Pressure Ulcers.

Proactive Medical Review & Consulting’s Certified Legal Nurse Consultants are experts in long-term care and are uniquely positioned to assist legal counsel in understanding the complexities of COVID-19 and examining all four legal elements (duty, breach of duty, damages and causation) in medical malpractice cases, as well as products liability, worker’s compensation, workplace safety, and wrongful termination and employment discrimination cases. Access our e-brochure or visit our webpage for more information on Proactive legal nurse consulting services.


Shelly Maffia, MSN, MBA, RN, LNHA, QCP, CHC, CLNC, CPC Clinical Consultant

Learn more about the rest of the Proactive team.