Nursing home abuse lawyers are defending their right to take on wrongful death claims for their clients, and some are arguing that they have a constitutional right to fight the government.
The attorney general’s office, which oversees nursing home lawyers, is expected to release new guidelines on Thursday aimed at protecting nursing home families and caregivers from wrongful death lawsuits.
Attorney General Loretta Lynch and her office have been working to overhaul the law since the nursing home deaths of three women and two men last year prompted widespread calls for a national investigation into nursing home abuses.
Lynch’s office also announced on Thursday that it is looking at ways to expand its power to prosecute nursing home negligence claims.
But the attorney general said the attorney-client privilege is a core part of nursing home law, and that nursing home attorneys are protected by the right under the Constitution to pursue wrongful death actions against nursing home caretakers and their families.
“It’s been our responsibility to ensure that we protect the constitutional rights of our members of the profession,” Lynch said.
“Our job has always been to defend the rights of all Americans to the best of our ability.
We’ve never taken a position that would restrict a lawyer’s ability to act on behalf of a client.”
Lynch said the new guidelines will be released “in consultation with attorneys and other stakeholders, and will reflect the evolving position of the attorneys and their colleagues.”
The attorney-adviser general’s proposal would allow attorneys to take a claim against nursing homes, whether they are private or public, even if the nursing homes themselves are negligent.
The law is written to protect nursing homes from liability, not to penalize them, Lynch said, but she said the rule could have an impact on the nursing system’s ability ailing caretippers and their family members.
“We need to keep in mind that this is a policy that was put in place in the name of the common good, that this was intended to protect people,” Lynch told ABC News.
“This is a law that we’ve seen before in the states, and we’ve always understood that we need to protect the caretaker’s family from a loss in their own life.”
Attorney-client rights are also protected by state law, Lynch added.
The American Bar Association and other legal groups have said the proposed rule could limit the ability of nursing homes to defend wrongful death suits against caretappers and their relatives.
A New York state law requires nursing home managers to obtain a nursing home’s consent to sue the nursing caretapper and their estate in a wrongful death case.
The law also allows nursing home owners to defend themselves in a lawsuit against their relatives who are seeking damages.
But Lynch said she was concerned that some attorneys who represent nursing homes and caretapped relatives may not know they have an attorney-Client Privilege.
“If an attorney is not aware of this, then he’s missing the whole point,” Lynch wrote.
“I think this rule could open the door for other attorneys to ignore this law.
It’s really important for people to understand that if they’re a nursing caretaker or someone with a family member who’s been harmed by the caretaker, they should have a lawyer-client relationship.”
The American Civil Liberties Union of New York and other groups have been pushing for a federal crackdown on nursing home negligent lawsuits, which are a common practice in states that have expanded the rights to defend nursing home clients.