Medical & Nursing Home Liability Pointers - 1/29/21

A Message from Pat Curran

As we move into 2021, there is hope on the horizon that life can return to some sense of normalcy.  While the vaccine roll-out has had its fair share of missteps, and access to the vaccine has been challenging, progress is happening.  As each day passes, more front-line workers and caregivers are getting vaccinated.  This is not a time to relax as we must remain focused and diligent as the many new Covid variants demonstrate that danger still lies around the corner.  
 
As a long-time Buffalo Bills fan, it was sad for the season to end just one game away from the Super Bowl.  It was a great season nonetheless, resulting in much civic pride in a year where we all needed a good distraction.  There's always next year, when hopefully we can all gather and celebrate together.  As the late Tim Russert used to say, rooting for the Buffalo Bills is not just being a fan, it’s a way of life.
 
We have a lot of interesting news and legal updates in this edition.  There is a preview of how the new Biden administration may be assisting our long-term care communities, and an update on vaccine distribution in New York.  If you are worried about liability for vaccine administration, the PREP Act should have you covered.  The Declaration under the Public Readiness Emergency Preparedness Act (PREP Act) provides immunity to “covered persons” from suit and liability under federal and state law claims of loss arising from the administration or use of countermeasures to diseases and public health emergencies.  Just today the U.S. Department of Health and Human Services (HHS) issued an amendment to add additional categories of qualified persons authorized to prescribe, dispense, and administer the COVID-19 vaccines authorized by the U.S. Food and Drug Administration!
 
In decisions from the New York courts, there is a challenge to an arbitration provision in an admission agreement based on the mental capacity of the signing resident.  In another case contesting the legal ramifications of an admissions agreement, a plaintiff objected to a forum selection clause by challenging the authenticity of the agreement.  An expert was precluded for not establishing qualifications to opine on the issues at hand.  A trial court ordered the remote deposition of a plaintiff due to Covid concerns.  Lastly, a strange fact pattern involving the age-old question of whether tossing a new born from doctor to doctor in a delivery room is an act of medical malpractice or ordinary negligence.
 
For New York practitioners, there are some very important updates on New York Civil Procedure taking effect February 1, 2021.  Pursuant to Administrative Order 270/20 issued by Hon. Lawrence K. Marks, Chief Administrative Judge of the Courts, there are 29 additions and revisions to the Uniform Civil Rules for the New York Supreme and County Courts.  These rules, designed to improve communication and efficiency, require attorneys (and their staff) to comply with new procedures and formalities throughout all phases of litigation.  Hurwitz & Fine litigators Chris Potenza and Amber Storr provide their insight and analysis here.

What Long-Term Care Facilities Can Expect from the Biden Administration
With the new administration coming to power in the midst of the COVID-19 pandemic, long-term care facilities across the nation are anticipating the changes that may be rolled out in the coming weeks, months and years.
 
On its second day in office, the administration vowed to provide financial and logistical support to the nation’s embattled nursing homes as part of a larger COVID-19 Strategy, while also hinting at stronger rules and regulations around infection control. President Biden also issued an executive order that empowers HHS and other departments to “provide targeted surge assistance to critical care and long-term care facilities… in their efforts to combat the spread of COVID-19”. A separate order created a testing board that will look to boost COVID-19 screening capacity in long-term care facilities and other congregate settings.
 
President Biden’s pick to lead the Department of Health and Human Services, Xavier Becerra, will likely bring an uptick in enforcement and an increased focus on compliance from the agency as political scrutiny continues to look at long-term care facilities. He is expected to move quickly to ensure that nursing homes are safe for residents and to improve the rollout of the vaccine. Also anticipated are an increase in infection control surveys and Civil Monetary Penalties (CMPs) as a result of survey deficiencies, especially once inspectors are able to return to conducting surveys in-person.
 
There are anticipated long-lasting impacts to skilled nursing facilities that received CARES Act funds to show compliance with reporting requirements demonstrating that those funds went to COVID-19-related activities, and audits of same. It is therefore vital that health care companies ensure they have in place a robust compliance program and that this is being met.
 

PREP Act Amended to Increase Authorized Vaccine Administrators
HHS today issued an amendment to the Declaration under the Public Readiness Emergency Preparedness Act (PREP Act) to add additional categories of qualified persons authorized to prescribe, dispense, and administer the COVID-19 vaccines authorized by the U.S. Food and Drug Administration. The amendment aims to help providers and state health departments meet the demand for vaccine and protect communities more quickly and comes amidst much criticism at both the state and federal level for the vaccine rollout.
 
The amendment provides the following changes:

• Any healthcare provider who is licensed or certified in a state is now authorized to prescribe, dispense, and/or administer the vaccine in any state or U.S. territory;
• Any physician, registered nurse, or practical nurse whose license or certification expires within the past five years is now authorized to prescribe, dispense, and/or administer the vaccine in any state or U.S. territory, so long as the license or certification was active and in good standing prior to the date it went inactive; and
• Any healthcare professional described above is required to complete the Centers for Disease Control and Prevention (CDC) COVID-19 Vaccine Training and, for healthcare providers who are not currently practicing or whose license or certification is expired, requires an on-site observation period by a currently practicing healthcare professional.

Under the PREP Act, a qualified person is a covered person, and subject to certain limitations – death or serious injury proximately caused by willful misconduct – a covered person is immune from suit and liability under federal and state law with respect to all claims for loss resulting from the administration or use of a covered countermeasure if a declaration under the PREP Act has been issued with respect to such countermeasure.
 
This amendment is a welcomed update from the Biden administration’s vaccine rollout plan and should provide some clarification to providers who have been tasked with administering the vaccine in their state regarding immunity from claims that may arise as a result of that vaccine administration. We advise all such providers to ensure they comply with the requirements for Vaccine Training and ensure robust, documented compliance with all vaccine administration guidelines.
 

Governor Cuomo Provides Update On New York’s COVID-19 Vaccine Distribution
New York Governor Andrew Cuomo provided state residents with an update on the distribution of the COVID-19 vaccine on January 16, 2021 after the first four weeks of availability for non-long term care facilities.
 
To date, New York’s healthcare distribution sites have administered 83% of the doses received from the federal government with an additional 73,336 doses administered over the prior 24-hour period. The state’s vaccine supply is determined at the federal level, and although more than 7 million New York residents are now eligible for the vaccine, the state will only receive 250,000 doses this coming week.
 
It remains to be seen what, if any, impact the shortfall has on New York’s vaccine rollout. We are pleased to note that all residents and staff at nursing homes who consented to vaccination have received their first doses, with a significant percentage of those having also received their second dose. Of concern, are reports that one-third of the state’s nursing home workers have refused to be vaccinated. Facilities with slow vaccine uptake are recommended to pursue personalized education programs that directly address the individual concerns held by those workers who are hesitant about receiving the vaccine.
 
If you believe you are eligible for a COVID-19 vaccine and would like to schedule an appointment to do so, please visit here.

December 2, 2020     McCarthy v. Sea Crest Health Care Center, LLC., et al.
Appellate Division, Second Department
A hearing is required to determine enforcement of arbitration provision contained in admissions agreement as questions of fact exist regarding the resident’s mental capacity to knowingly exploit benefits flowing from the agreement signed by his wife.
 
In this action to recover damages for negligence and violations of the Public Health Law 2801-d, the Plaintiff appealed from an order of the Trial Court granting Defendant’s motion to compel the Plaintiff to arbitrate the claims against them.
 
Dennis McCarthy was allegedly injured while a resident at the Defendant’s nursing home and the instant action was commenced on his behalf. Defendant moved to compel arbitration of those claims pursuant to arbitration provisions contained in an admission agreement signed by Plaintiff, Mr. McCarthy’s wife. In opposition, Plaintiff challenged Ms. McCarthy’s authority to sign the agreement on her husband’s behalf because his son held the power of attorney.
 
The Appellate Court agreed with Plaintiff’s contention that the trial court erred in summarily granting Defendant’s motion to compel arbitration under the direct benefits theory of estoppel. Arbitration is a matter of contract, thus nonsignatories are generally not subject to arbitration agreements. A nonsignatory may however be compelled to arbitrate under the direct benefits theory of estoppel where the nonsignatory knowingly exploits the benefits of an agreement containing an arbitration clause and receives benefits directly flowing from that agreement. Here, questions of fact existed as to Mr. McCarthy’s mental state at the time of his admission to and residency at Defendant’s facility, such that it could not be determined that he had the mental capacity to knowingly exploit benefits flowing from the admission agreement. The matter was therefore remitted to the Trial Court to hold a hearing to determine whether Plaintiff is bound by the arbitration provisions.

In our view, it would appear that the court was going out of its way to find a means to invalidate the arbitration agreement. 
 

January 20, 2021     Andreyeva v. Haym Solomon Home for the Aged, LLC., et al.
Appellate Division, Second Department
Failure to authenticate admissions agreement allegedly signed by decedent containing forum selection clause results in denial of request to change venue.
 
In an action to recover for wrongful death, Defendant moved pursuant to CPLR 501 and 51 for a change of venue from Kings County to Nassau County, asserting that the decedent had executed a written agreement containing a forum selection clause. Plaintiff opposed the motion, contending that Defendant had failed to demonstrate that decedent had entered into the purported agreement.
 
Here, Defendant submitted an incomplete admissions form claiming that it bore the illegible signature of the decedent. Defendant also submitted an affidavit from one of its employees in an effort to authenticate the decedent’s alleged signature. However, the employee failed to state that she was present when the decedent allegedly signed the admissions form or that she had personal knowledge as to whether the decedent signed it. Since Defendant failed to adequately authenticate the alleged agreement containing the forum selection clause, it was deemed unenforceable and insufficient to sustain Defendant’s burden of demonstrating the existence of a written agreement fixing the place of trial. Accordingly Defendant’s appeal was denied.
 

January 14, 2021     Vincent L. Villani, as Administrator of the Estate of Ralph A. Villani v. Kings Harbor Multicare Center, et al.
Appellate Division, First Department
Summary judgment granted where plaintiff’s expert did not profess that he possessed knowledge necessary to render an opinion on the issues presented.
 
Plaintiff appealed a decision which granted Defendants’ motions for summary judgment dismissing their complaint in an action for medical malpractice, negligence, and violations of the Public Health Law 2801-d.
 
Defendants established their prima facie entitlement to judgment as a matter of law through the records of treatment provided to Plaintiff’s decedent and the affirmations of their experts, who opined that appropriate care was provided to manage decedent’s multiple conditions, including vascular disease with arterial insufficiency, chronic renal disease secondary to diabetes, and congestive heart failure among others. In opposition, Plaintiff submitted an affirmation of a physician board certified in nuclear medicine, who did not profess that he possessed knowledge necessary to render an opinion on the issues presented involving the treatment of a geriatric patient with diabetes, renal, cardiac, and other conditions. Nor was this remedied through the affidavit of a registered nurse. As such, the Appellate Court affirmed the decision granting summary judgment on the causes of action for medical malpractice.
 
Plaintiff’s claims predicated on the Public Health Law 2801-d, including his falls while undergoing recovery at Defendants’ facility, however, may proceed, as these claims form a separate basis for liability than medical malpractice or ordinary negligence.

 
December 23, 2020     Erica Rodriquez, as Administratrix of the Estate of Edelmiro Rodriguez v. Montefiore Medical Center, et al.
Supreme Court, Bronx County
Ordered that remote depositions could be conducted with limits on parties present and on communications between plaintiff and her counsel imposed by the Court.
 
In an action to recover damages for negligence and medical malpractice, Plaintiff sought to compel Defendants to conduct depositions by remote video conferencing, arguing that in-person depositions were not appropriate in light of the on-going coronavirus pandemic. Defendants contended in oppositions that conducting Plaintiff’s deposition remotely provides the opportunity for counsel to inappropriately coach the witness, and limits defense counsel’s ability to ascertain the demeanor and candor of the witness.
 
This Court noted that the general rule under CPLR 3110 and 3113 that, absent a stipulation to the contrary, depositions will take place in person is not rigid and case law is sparse in reflection of the infrequency with which parties sought to compel remote depositions prior to the pandemic. Since that time, remote depositions have become routine, and courts have repeatedly concluded that (1) a court can compel a remote deposition if the party seeking such a deposition demonstrates that appearing for an in-person deposition would present an undue hardship, and (2) that the personal and public health dangers posed by the coronavirus pandemic present an undue hardship.
 
Here, Defendants objection to conducting depositions remotely were unfounded and not persuasive. To assuage concern, the Court ordered the remote depositions be conducted with no individual other than counsel and court reporter be present, that Plaintiff is prohibited from communicating with anyone in any manner during her deposition except for parties present, and that Plaintiff’s counsel’s communications during depositions be limited to appropriate subjects.
 
 
January 4, 2021     Rojas v. Dr. Sapna Tandon and Dr. Robert Hosty
Supreme Court, Kings County
Damages sustained when a physician tossed a newborn infant were assessed as a common everyday experience and thus sounding in negligence rather than medical malpractice.
 
In an action to recover damages for personal injuries, Defendant moved for an Order pursuant to CPLR 3211 dismissing the complaint due to Plaintiff’s failure to comply with CPLR 312-a, requiring that a certificate of merit accompany the complaint, and because the claim is barred by CPLR 208, requiring an action for medical malpractice to be commenced within ten years of the alleged malpractice.
 
The premise of Defendant’s argument in support of dismissal was the contention that this action sounds in medical malpractice, whereas Plaintiff asserted that this is a matter of ordinary negligence. Plaintiff commenced this action on January 6, 2020, alleging that on the date of her birth, XX/XX/1999, after her delivery and during her transfer from the delivery room, Defendant caused her to suffer severe and permanent injuries when he tossed her to another physician.
 
The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by law persons, or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts.
 
Here, Defendant failed to submit one scintilla of evidence regarding the transfer of a newborn from one person to another in the delivery room. Indeed, the allegation of tossing a newborn infant into the arms of another physician is not the result of medical advisement, but is an act that can be assessed by the common everyday experience of lay persons. Consequently, this is not an action sounding in medical malpractice and so CPLR 3012-a was deemed inapplicable. Furthermore, the suit was deemed timely since it was commenced prior to Plaintiff’s 21^st birthday and within three years of the expiration of her infancy.

As a public service, we are pleased to present this newsletter providing the latest news, developments, and analysis of recent court decisions impacting the medical and long-term care communities.  In some jurisdictions, newsletters such as this may be considered: Attorney Advertising.
 
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Your Medical Malpractice & Nursing Home Defense Team
is here to answer your questions:
V. Christopher Potenza, Esq. ([email protected])
Patrick B. Curran, Esq. ([email protected])
Stephanie L. McCance, Esq. ([email protected])

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