Last week, we discussed COVID-19’s serious impact on nursing homes and long-term care facilities in Canada. A disproportionate number of COVID-19 deaths have occurred in these residences, and medical malpractice lawyers believe some could have been avoided.

Several lawsuits against care homes, and the businesses and governments that operate care homes, are now in their early stages. These suits will face a number of hurdles. As we have discussed before, plaintiffs in medical malpractice or negligence cases must prove the following to be successful:

  • That they were owed a duty of care by the defendant medical practitioner, facility, or facility operator
  • That the defendant failed to provide an appropriate standard of care
  • That they incurred damages
  • That the failure to provide the standard of care was the cause of the damages
  • And that the damages were reasonably foreseeable

According to legal experts recently interviewed by the CBC, the first challenge in these cases will be determining what standard of care is appropriate during an epidemic.

“A crisis like this does not give nursing homes a free pass to neglect the elderly,” one interviewee said. “So I think what will happen is … we’re going to look back at this through a lens of what was reasonable under the circumstances.”

Medical malpractice lawyers will compare care homes’ actions with the standards and guidelines issued by public health authorities, the World Health Organization, and similar bodies. They will also consider whether the owners and operators of the facilities did enough to push adoption of the guidelines.

Even if a standard of care is established, plaintiffs must prove that the facilities’ failure to provide appropriate care contributed directly to their or their loved ones’ injuries.

“If the theory is, well, workers were able to go from one home to the other and transit the virus – that’s a theory, but you have to show factually that that actually caused other people to be affected or infected,” another interviewee told the CBC.

Compensation in these cases will be another tricky issue – plaintiffs expecting large payouts for the loss of a loved one are likely to be disappointed. Although compensation is available for loss of care, guidance and companionship, the amount available is low.

Despite these challenges, it is important that long-term care facilities and their owners and operators are held responsible for any negligence. The virus is particularly dangerous to the elderly and people with pre-existing medical conditions – the very patients that occupy the majority of long-term care beds. The lack of preparedness of such an emergency is inexcusable.

If you or a member of your family has been affected by the COVID-19 outbreak in Ontario’s long-term care residences, contact Neinstein Personal Injury Lawyers today to schedule a free, no-obligation consultation with our experienced team of medical malpractice lawyers.

 

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Greg Neinstein