Ask the legal expert about ... liability in flu cases

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John Durso, Esq.  Nixon Peabody LLP
John Durso, Esq. Nixon Peabody LLP

We've taken reasonable precautions, posted signs, added many hand sanitizers, urged hand washing or mask wearing by visitors, etc., but one of our residents got the flu. Now family members are trying to hold us legally responsible for his sickness and ultimate death. What more could we have done? Do we have anything to worry about?

Residents or their families can sue for wrongful death or other injuries to a resident. But for a plaintiff to win damages under any negligence theory, they must show the provider caused the injury. To prove cause to impose liability, a jury must find that the provider did not act as a reasonable provider would have acted.

You state you have policies and procedures in place that were reasonable and would have prevented the injury. Let's assume you trained employees about these policies and procedures and did not ignore the enforcement of policies and procedures. Let's also assume you did not disregard some other policy or procedure required by federal or state laws or regulations. If these assumptions are factually correct, it would be hard for the plaintiffs to prove that a provider caused the resident to get the flu.

Without proof of provider causation, the provider should not be found liable for negligent conduct and therefore is not exposed to any liability. The provider should notify its insurance carrier of a potential claim so that, if there is
a lawsuit filed, the cost of defending the lawsuit and any liability from the lawsuit should be the responsibly of the insurance carrier and not the provider.

The insurance carrier, under its policy, generally reserves the right to retain legal counsel to defend the claim, striving to settle at the lowest amount possible.

Please send your legal questions to John Durso at ltcnews@mcknights.com.