Medical & Nursing Home Liability Pointers - 10/29/21


Hurwitz & Fine's
Medical & Nursing Home Liability Pointers

October 29, 2021


 A Note from Chris Potenza


This month I promised our group lunch if we could publish this newsletter without reference to COVID-19.  Sadly, there will be no free lunch today as the pandemic lingers on and continues to dominate the news cycle and impact litigation.  While it was exciting for me to return to the courtroom for trial earlier this month in the Western District, it’s a cautionary tale however about the risk of trying cases in the midst of a pandemic.  We were informed a few days after the case settled that a courtroom employee was sick and had tested positive for COVID-19, which would likely have caused a mistrial or other accommodation after many of the well-paid experts had testified.

We continue to closely monitor the litigation throughout the state challenging the scope and validity of the numerous Executive Orders passed during the pandemic giving immunity to nursing homes and medical facilities.  As COVID-19 hit the nursing home community particularly hard, this also led to substantial nursing home regulatory changes and reforms.  The 2021 New York State Legislative session resulted in the enactment of significant legislation impacting New York’s nursing home industry, including requirements that nursing homes maintain minimum spending levels on resident care and minimum levels of nursing hours per resident per day. In recent weeks, the Department of Health has released draft proposed regulations to implement these significant reforms. These requirements are scheduled to take effect as of January 1, 2022. To help keep up with all that’s happening, we are now offering in-house (webinar) training on New York Nursing Home Regulatory Changes and the Impact of Covid-19 Immunity Statutes on Nursing Home Liability in Personal Injury Actions.  Please contact us directly to schedule a one-hour interactive training session for your team.
I am very pleased to announce that we continue to grow as we welcome attorneys Jesse L. Siegel and Michael J. Williams to the Hurwitz & Fine litigation team.  Mr. Siegel has joined our Melville office as an experienced downstate litigator and trial lawyer. Mr. Williams is a former Deputy Attorney General for the State of California and has years of experience in medical device and prescription pharmaceutical litigation.  As a certified EMT, Mike has a particular interest and expertise in representing first responders!  
The issue of enforcement of vaccine mandates continues to make its way through the courts in New York.  Judge David Hurd (U.S. District Court, Northern District of New York) converted his prior temporary restraining order into a preliminary injunction that prevents the State of New York from enforcing vaccine mandates for health care workers who claim a religion-based exemption.   

On the same day, Judge Valerie Caproni (U.S. District Court, Southern District of New York) denied a similar request for a preliminary injunction brought by a group of NYC teachers.  While New York City’s vaccine mandate requires all public-school employees to be vaccinated, it does provide for religious exemptions.  In denying the application, Judge Caproni held that the teachers failed to show that the city was “openly hostile” toward certain religious beliefs and did not show animus.
In addition to these vaccine mandate religious exemption rulings, there is plenty of other timely news and information to report on this month, including a proposed $4 billion compensation fund for families of nursing home residents who died of COVID-19 during the pandemic, an unfortunate decision from the 3rd Circuit rejecting a nursing home’s defense under the Public Readiness and Emergency Preparedness (PREP) Act, which is supposed to shield those fighting the pandemic from lawsuits, and a host of conflicting decisions on whether New York hospitals can be forced to administer the anti-parasitic drug, ivermectin, to treat COVID-19 patients, despite it lacking federal approval.
There are more interesting non-COVID-19 related cases to review this month as well.  In a case that could impact discovery in a host of other types of litigation (lead paint, CVA), the Second Department held that the genetic history of a decedent’s family is relevant to the issue of proximate cause.  The Second Department also addresses the liability of an allergist who advised the patient  that he was allergic to a medication, but did not communicate the allergy to the decedent’s primary care physician.  Lastly, the Fourth Department  finds that a physician’s exercise of medical judgment in opting to conservatively treat the plaintiff’s abdominal condition could not support a claim for punitive damages.


Your COVID-19 Resource Center: Legal Updates Regarding the Coronavirus

Our teams are hard at work keeping you updated on the latest New York State and Federal updates concerning the coronavirus. Our Resource Center compiles all of the information that could affect you and your business during this pandemic.



Latest News & Developments

Federal Appeals Court Rules Against Nursing Homes in COVID-19 Lawsuits
In a setback to nursing home operators facing COVID-19 lawsuits, the 3rd U.S. Circuit Court of Appeals in Philadelphia rules that cases against two New Jersey facilities should proceed in state courts. The nursing homes had argued that the suits against them belonged in federal court, citing the Public Readiness and Emergency Preparedness (PREP) Act, which shields those fighting the pandemic from lawsuits. The Court however rejected the argument that the PREP Act was so far-reaching that families’ state-law negligence claims were really federal claims that belonged in federal court, as the families “asserted only garden-variety state-law claims, so state court is where these cases belong.”
The cases were filed in state court in April 2020 by families of four residents who died of COVID-19. Two nursing homes were sued and the families allege the facilities failed to take precautions to contain the spread of the virus. It is anticipated that this ruling will encourage an uptick in COVID-19 lawsuits filed in state courts.
Governor Hochul Takes Action to Alleviate Staffing Shortages
On September 27, 2021, New York Governor Hochul signed into effect an executive order to alleviate potential staffing shortages at health care facilities statewide. Provisions in the executive order include:

  • Allowing out of state and out of country health care workers to practice in New York;
  • Waiving re-registration fees, creating an expedited re-registration process, and eliminating barrier to re-enter the workforce for retirees;
  • Allowing practitioners to work or volunteer at other facilities;
  • Allowing physician visits in nursing homes to be done using telemedicine;
  • Allowing New York State-licensed providers without current registrations to practice without penalty for lack of registration;
  • Allowing graduates of SED-registered programs to practice in a hospital or nursing home for 180 days after graduation;
  • Providing flexibilities for clinical labs to increase testing capacity;
  • Expanding the scope of practice for additional health care workers to allow for COVID-19 testing and vaccinations, including expansion of the ability of midwives, registered nurses, physicians, and nurse practitioners to more easily administer and order COVID-19 vaccinations and testing;
  • Permitting facilities to discharge, transfer, or receive patients quickly, provided they are protecting the health and safety of patients and residents and comply with federal law;
  • Suspending requirements for preauthorization review for scheduled surgeries, hospital admissions, outpatient services, home health care services, and inpatient rehabilitation services.

New York at Center of Legal Battles Over Using Ivermectin to Treat COVID-19
At least 14 lawsuits have sought to force New York hospitals to administer the anti-parasitic drug, ivermectin, to treat COVID-19 patients, despite it lacking federal approval for treating the respiratory disease. Hospitals and doctors have opposed the lawsuits, citing in part the potentially far-reaching ethical and medical ramifications of judges overruling health officials on the safety and efficacy of drugs. Four of the lawsuits were resolved because patients died or recovered before ivermectin was used, but in at least four of the other lawsuits, judges ordered hospitals to administer the drug.
In one Richmond County case, the court in denying the request stated that it would not “medicate from the bench” and order a hospital to provide a patient with an “unproven, unapproved treatment that could potentially have detrimental effects on him due to his fragile health,” and further noted that the case failed to present expert support for the off-label use of the drug to treat the patient’s condition. In those cases where the court ordered ivermectin to be administered, the drug was prescribed by doctors and nurse practitioners unaffiliated with the hospitals and family members signed a liability waiver. There are concerns of the far-reaching consequences of forcing physicians to administer medications against the standard of care, and we will continue to monitor these lawsuits as they arise.
Vaccine Mandate Deadline Hits Home Health Aides, Set to Expand Again November 1
Home health care aides who refuse to get a COVID-19 vaccination are now barred from working in New York as of October 8, 2021, under a new state mandate that one industry group warned could lead to thousands of caregivers losing their jobs. The mandate also applies to workers at assisted living homes, hospice care, treatment centers, and AIDS home care programs. This is in addition to the initial mandate, implemented last month, that covered hospital and nursing home workers. The state’s mandate is set to expand again on November 1, 2021 to cover workers who work at state-run facilities offering health care to individuals living with developmental disabilities or mental health needs.
Religious Exemptions to Vaccine Mandates Allowed in New York
A federal judge ruled on October 12, 2021 that New York state cannot impose a COVID-19 vaccine mandate on healthcare workers without allowing their employers to consider religious exemption requests, as it conflicts with workers federally protected right to seek religious accommodations from their employers. The Court issued a preliminary injunction in favor of the workers. New York Governor Kathy Hochul has vowed to fight the decision.
Unemployment Benefits Not Extended to Healthcare Workers Fired Over Vaccine Mandate
Healthcare workers in New York state who refuse the COVID-19 vaccine and are fired for failing to comply with the new state law will not be able to collect unemployment benefits unless they present a doctor-approved request for medical accommodation, according to the state’s Department of Labor. The Department stated that employer’s have a “compelling interest” for their employees to be vaccinated, so those who voluntarily quit or are terminated for refusing the mandated vaccination will not be eligible for those benefits.
Lawmakers Want $4 Billion Nursing Home Compensation Fund
New York lawmakers want to establish a $4 billion compensation fund, similar to the one formed after the September 11 attacks, for families of nursing home residents who died of COVID-19 during the pandemic. The legislative proposal was announced by Assemblyman Ron Kim. Per the proposal, eligible families that submit applications for compensation could receive a minimum payout of $250,000 for each resident who died of the virus, and spouses and dependents of the deceased would be eligible for a minimum payout of $100,000. Kim has not discussed how the state would pay for the proposal, which additionally seeks to extend the statute of limitations for COVID-related personal injury and wrongful death claims filed by residents and families.



Analysis of Recent Court Decisions

October 27, 2021       Walsh v. Akhund et al.
Appellate Division, Second Department
In medical malpractice action, the genetic history of a decedent’s family is relevant to the issue of proximate cause and not unduly speculative.
Plaintiff brought a medical malpractice and wrongful death action alleging that her oncologist negligently failed to advise her to undergo genetic counseling that might have disclosed that she carried a harmful variant of the BRCA1 or BRCA2 gene, increasing her risk of developing ovarian cancer.  Prior to trial, the Court granted a motion in limine, precluding the introduction of the genetic test results of the decedent’s sister indicating that she carried the variant of the BRCA2 gene as highly speculative with respect to causation.  Ultimately, the jury concluded that the doctor departed from the standard of care in failing to recommend genetic counseling, but that the departure was not a substantial factor in causing the decedent’s injury or death.
The Second Department held that evidence of the sister’s genetic testing results was not unduly prejudicial and was relevant to the issue of proximate cause, as it would have supported the contention of plaintiff’s expert that the decedent would have undergone the testing if properly advised to do so, that she had a greater than 50% chance of carrying the harmful variant based upon her sister’s test result and other factors, and that had she tested positive she would have undergone a procedure to remove her ovaries which would have diminished her chance of developing ovarian cancer. 
October 6, 2021         Hilt v. Carpentieri, etc., et al.
Appellate Division, Second Department
Second Department sets aside a jury verdict, finding no valid line of reasoning from which a reasonable jury could have concluded that the defendant’s failure to communicate the decedent’s medication allergy proximately caused his injury and death.
The defendant, an allergist, advised the decedent that he was allergic to a medication, Lisinopril, that he had been prescribed by his primary care physician and advised him to discontinue taking it.  The decedent followed-up with the defendant on two subsequent occasions, who confirmed that the decedent was not taking Lisinopril.  The allergist, however, did not communicate the allergy to the decedent’s primary care physician who had prescribed the medication.  The medication was automatically renewed and sent to the decedent by a prescription delivery service.  Later, the decedent presented to the hospital with anaphylaxis and died.  A jury returned a verdict in favor of plaintiff, finding that the allergist negligently failed to communicate the decedent’s allergy, and that this departure from the standard of care was a substantial factor in causing his anaphylactic shock and death.
In applying the standard that a motion to set aside a jury verdict under CPLR §4404(a) will be granted where there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusions reached by the jury based on the evidence presented at trial, the Second Department concluded that the Trial Court should have granted defendant’s motion.  This conclusion was based upon the fact that although the defendant failed to communicate the decedent’s allergy to the physician who had ordered the medication in question, the evidence established that the refilled prescription did not reach the decedent’s home until after he had already presented to the hospital with anaphylaxis, and therefore there was no rational basis from which a jury could conclude that defendant’s failure to communicate proximately caused the decedent’s anaphylactic shock and death.
October 1, 2021         Gaines v. Brydges et al.
Appellate Division, Fourth Department
Fourth Department affirms that punitive damages are not appropriate in medical malpractice actions absent special circumstances involving willful or wanton conduct.
Plaintiff brought a medical malpractice action against an emergency department physician for failure to treat an abdominal skin condition, and defendant moved for summary judgment to dismiss the claim for punitive damages.  In applying the strict standard for imposing punitive damages only in exceptional cases with conduct involving spite or malice, fraudulent or evil motive, or a conscious and deliberate disregard of the interests of others such that it is willful or wanton, the Fourth Department concluded that the physician’s exercise of medical judgment in opting to conservatively treat the plaintiff’s abdominal condition could not support a claim for punitive damages.  The Fourth Department concluded that even if the physician’s decision to treat plaintiff’s abdominal skin condition conservatively was inappropriate, it was not the sort of malicious conduct meant to implicate punitive damages.



Hurwitz & Fine's Medical & Nursing Home
Defense Team

With over 50 years of combined experience in defending doctors, nurses, and medical professionals, as well as hospitals, institutions, and nursing homes, the Hurwitz & Fine Medical & Nursing Home Defense Team is here for you.  

Our defense team has the trial results and experience to vigorously defend our caregivers facing blame in the most trying of circumstances.  Patrick B. Curran has dedicated his 40-year legal career to defending medical professionals and nursing homes from claims of negligence and malpractice.  He has also served as an adjunct faculty member at the University at Buffalo School of Law, and lecturer for the University at Buffalo School of Medicine and School of Nursing, as well as for other health care professional and community groups.  V. Christopher Potenza is a seasoned and trial-tested litigator, having obtained defense verdicts across New York State on complex matters. He has substantial experience defending claims at the federal, state, and appellate levels.  Kara M. Eyre has 10 years’ experience defending physicians, hospitals, and medical institutions in complex matters involving medical malpractice and nursing home negligence through all phases of litigation, including trial and appeal.  Stephanie L. McCance offers her international legal experience with strong research, analysis and advocacy skills, with extensive involvement in complex litigation, including all phases of discovery, depositions, motions, and appeals.


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.
If you know of others who may wish to subscribe to these legal alerts, please feel free to forward it. If you wish to subscribe or unsubscribe, please do so at the bottom of this newsletter.


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])
Kara M. Eyre, Esq. ([email protected]
Stephanie L. McCance, Esq. ([email protected])


Read Our Additional Newsletters


Coverage Pointers: This twice-monthly electronic newsletter summarizes important insurance law decisions from appellate courts in New York State with the occasional snapshot across borders. Contact Dan Kohane at [email protected]  to subscribe.

Employment & Business Litigation Pointers:  Employment & Business Litigation Pointers aims to provide our clients and subscribers with timely information and practical, business-oriented solutions to the latest employment and general business litigation developments. 

Labor Law Pointers:  Hurwitz & Fine, P.C.’s Labor Law Pointers offers a monthly review and analysis of every New York State Labor Law and construction accident case decided during the month by the Appellate Courts. Contact Dave Adams at [email protected] to subscribe.

Premises Pointers This monthly electronic newsletter covers current cases, trends and developments involving premises liability and general litigation. Contact Jody Briandi at [email protected]  to subscribe.

Products Liability Pointers:   This monthly newsletter covers all areas of products liability litigation, including negligence, strict products liability, breach of warranty claims, medical device litigation, toxic and mass torts, regulatory framework and governmental agencies. Contact Chris Potenza at [email protected] to subscribe. 



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