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Can You Sue For Coronavirus (COVID-19) Infection in NJ?

April 10, 2020

Were you or a loved one were exposed to COVID19 “coronavirus,” through the negligence of business, employer, nursing or rehab facility? If so, you may choose to file a lawsuit once you are healthy and the dust settles. There are strict time limits to filing such personal injury claims. So contact an experienced attorney right away. The first question is whether you and your lawyer are allowed to sue for coronavirus (COVID-19) infections in NJ?

As of this writing, there are 51,027 confirmed cases of COVID-19 in New Jersey. There have been more than 1,700 deaths.  That puts our state second on the list of states with the most cases. By the time you read this, those numbers will have continued to climb exponentially. This is certainly uncharted territory for everyone This includes medical professionals, government authorities, businesses and the legal community. 

Millions are unemployed. Thousands are suffering the loss of a loved one. Many families are seeking relief. As we move forward, legal action will be one path some seek to hold some accountability and to try to recoup losses. 

However, recent executive orders have aimed to add legal protections in the healthcare community. How does this affect individual rights? Two key groups that have especially been hit hard by this pandemic are nursing home residents and employees that work at essential businesses.  Can these vulnerable groups sue for Covid-19 exposure? Let’s look at both scenarios. 

Do Healthcare Professionals Have “Legal Immunity?”

NJ Gov. Phil Murphy recently signed an executive order aimed at protecting healthcare professionals from malpractice lawsuits. The purpose of the order was to encourage doctors, nurses and other professionals who were not already working to help the COVID fight to step up. For example, retired professionals, doctors with licenses in other countries, and those working in other specialties can help out on the front lines. 

Originally, the order did not prevent lawsuits. It only limited the payout to what the malpractice insurance agreed to pay.  However, the healthcare community quickly realized that many malpractice policies will not cover physicians working “outside their specialties.” Therefore, the Governor revised the order to provide “unqualified immunity” to healthcare professionals. What does that mean?

The Governor has granted healthcare professionals “reasonable, qualified immunity.” A statement from Sen. Declan O’Scanlon, Assemblywoman Serena DiMaso and Assemblyman Gerry Scharfenberger summed it up this way, “The qualifier here would be if there is established evidence that the injury or death of the COVID-19 patient is as a direct result of gross negligence on the part of the medical personnel.”

So, even though healthcare professionals have “legal immunity,” they can be sued if “gross negligence” is established. 

Can Nursing Homes Be Held Accountable?

Yes. The Governor’s executive order applies to medical professionals working on the front lines, not at nursing homes. Additionally, on March 9 the U.S. Centers for Medicare and Medicaid Services (CMS) issued specific guidance to nursing homes regarding how they handle the COVID-19 crisis. These written guidelines were intended to put nursing homes on notice. Nursing homes around the country must follow these federal directives because they all accept Medicare and Medicaid patients. Violations in key areas of the CMS guidelines would definitely provide grounds for legal action. What are some of those areas?

·       Visitor restrictions. Much of the CMS memo focused on restrictions that allowed people to come in and out of a facility. How fast did the nursing home lockdown, preventing exposure to patients? 

·       Infection response. Did they already have an infection control program in place? Elderly people get infections, even when COVID-19 is not an issue. Did the facility already have proper policies and procedures in place to protect other residents and staff? Did they follow federal regulations related to infection control? 

·       Staffing. Understaffed facilities often resort to using LPNs instead of RNs. The problem with this is that LPNs are not legally permitted to perform physical assessments. So, if a resident gets sick, they often get even sicker when there is not an RN available to do a physical assessment and make a recommendation for a transfer to a hospital. 

The two key questions in nursing home lawsuits are “Was there negligence?” and “Did the facility follow federal guidelines?” You may not get a clear yes or no answer. This is where the helpful guidance of an experienced personal injury attorney is needed.  Obtaining medical records, including the nurses notes, would help your attorney ascertain if you have a viable case. 

Can Businesses Be Sued?

Again, the answer is yes. The Occupational Safety and Health Act’s general duty clause states that employers must “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” If a business does not take reasonable steps to protect its employees, they are exposing themselves to legal action. 

In fact, some lawsuits have already started to roll in. In Chicago, the family of a coronavirus victim is suing Walmart. The family claims the store failed to notify employees when several employees started showing symptoms. Four from that store have died. Similarly, two workers at Radio Communications Systems are suing because they allege they were fired after voicing concerns that their employer was not following state-ordered precautions. 

Here in New Jersey, construction workers are voicing their concern over dangerous work conditions on a Jersey City job site, laying the groundwork for legal action should one of them become sick. 

Workers are not the only ones with litigation options. In theory, businesses could be sued by customers as well if they failed to take the proper precautions to protect consumers.  Forewarning at-risk companies, the National Law Review recently recommended that businesses “should consider providing Notice of Circumstance under their current claims-made liability policies.” There’s no doubt they are anticipating COVID-19 lawsuits against businesses, urging them to prepare now. 

Seek Legal Advice

The health and economic consequences of COVID-19 are yet to be seen, but we anticipate devastating statistics in New Jersey and across the country.  While much of the suffering was unavoidable, there are cases when damage was inflicted due to neglect on the part of an employer, nursing home or simply a store that consumers rely on for essential goods. If you feel greater care could have stemmed the effects of this disease in your case, or that of your loved one, talk to a personal injury attorney

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