Medical & Nursing Home Liability Pointers - 10/31/23



October 31, 2023
  A Note from Liz Midgley:

Greetings and Happy Halloween! 

No tricks, but we have a treat for those following the decision by the New York Litigation Coordination Panel to coordinate nursing home COVID-19 claims.  The LCP’s Modified Order of Coordination (Index No. LCP 000112022), dated October 30, 2023, effectively cancels and rescinds the coordination of nursing home COVID-19 claims.  In a nutshell, cases that would be subject to the coordination order shall not be coordinated, previously coordinated cases shall be transferred back to their original court of jurisdiction, and cases filed directly in a Coordination Part shall be transferred to a court of competent jurisdiction and venue.  In the Third and Fourth Judicial Departments (essentially “Upstate New York”), the parties may stipulate to remain in a Coordination Part.

The Modified Order provides that:

WHEREAS by Order of Coordination, dated October 19, 2022 (the "Order"), the Litigation Coordination Panel, pursuant to the Uniform Rules for Trial Court (22 NYCRR) § 202.69, made findings of fact and directed the coordination of certain actions and proceedings between the four Judicial Departments of the Supreme Court, Appellate Division, in the respective counties of New York, Nassau, Albany, and Erie; and

WHEREAS the Order has advanced the purposes and goals of Section 202.69, including the efficient and consistent resolution of common issues, some of which have now been addressed, and in consideration of the orderly administration and judicial efficiency of the Supreme Court going forward;


ORDERED that the Order is modified and supplemented as described herein. The Order's findings are repeated as though fully stated herein; and it is further

ORDERED that any action or proceeding subject to the Order, but not yet transferred pursuant thereto, shall not be transferred to a Coordination Part; and it is further

ORDERED that, except upon stipulation as provided below, any action or proceeding subject to the Order and previously transferred pursuant thereto, shall be transferred to the court and venue in which the action or proceeding was originally filed and, to the extent any action or proceeding subject to the Order was originally filed in a Coordination Part, the Coordinating Judge shall transfer such matters to a court of competent jurisdiction and venue pursuant to the Civil Practice Law and Rules; and it is further

ORDERED that the parties to any action or proceeding subject to the Order previously transferred and still pending before the Coordination Part in either the Third or Fourth Judicial Department may, with the consent of all parties to that action or proceeding, elect to remain in the Coordination Part for pre-trial purposes pursuant to Section 202.69(a), (d), and CPLR § 503; and it is further

ORDERED that the parties electing to remain in the Coordination Part in either the Third or Fourth Judicial Department shall submit a Stipulation to that effect within 60 days of the date of this Modified Order of Coordination, which Stipulation will be so-ordered by the Coordinating Judge.

This is certainly “spooktacular” news as we had previously addressed the myriad of challenges facing this seemingly well-intentioned attempt at COVID-19 litigation coordination.
Grieving Families Act Update
We are still monitoring the revised version of the Grieving Families Act, legislation that would completely overhaul wrongful death claims in New York by permitting recovery for emotional damages and expanding the class of persons (“close family members”) who can seek recovery for a fatality.  See, The Resurrection of the Grieving Families Act: Another Attempt to Revamp New York’s Wrongful Death Statute.
After prior legislation suffered a veto this past January, the 2023 version of the legislation more narrowly defines the pool of plaintiffs who would be able to bring a case for wrongful death, expands the statute of limitations from two to three years, and would apply retroactivity to any cause of action accruing on or after July 1, 2018, regardless of when the claim was filed. 
While Governor Hochul had voiced support for a more limited reform of New York’s Wrongful Death Statute to include a cap on damages and carve out an exception for medical malpractice claims, notably she has not requested delivery of this bill from the legislature, which must occur by year-end. It would thus appear that the revised iteration of the bill does not adequately address the Governor’s concerns about the burden and increased costs on families, small businesses, and New York’s health care industry.  As the year end deadline fast approaches, we expect a surge of activities concerning the bill.
Recently, Chris Potenza and Alice Trueman presented "The Grieving Families Act 2.0: Another Attempt to Revamp New York's Wrongful Death Statute" to regional claims professionals. If you would like to schedule a complimentary training for your team, or obtain a copy of the presentation, please contact us
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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.

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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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