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November 23, 2022
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 A Note from Steve Sorrels
From our team here at Hurwitz Fine, we would like to wish all our friends a Happy Thanksgiving, and a special thank you to all the medical staff, caregivers and front-line workers who prioritize patient care (especially during this recent storm that dropped six feet of snow across parts of Western New York).
We have a lot to be thankful for, and a lot to celebrate! Congratulations to the Hurwitz Fine nursing home litigation and appellate advocacy team of Liz Midgley, Beth Adymy, and Todd Bushway, who successfully argued in Ruth v Elderwood at Amherst, that the repeal of New York’s Emergency or Disaster Treatment Protection Act (EDTPA), which granted healthcare providers, including individual workers as well as facilities and their executives and administrators, immunity from civil and criminal liability for any injury or death alleged to have been sustained during the Covid-19 pandemic, took effect starting on the date the statute was enacted, and did not negate retroactively the previous time period that immunity was in place. This decision is a major victory for health care providers and brings a sense of clarity to an issue impacting hundreds, if not thousands, of pending or potential claims across New York State.
I also wanted to congratulate my partner, David Adams, and his NYS Labor Law (Scaffold Law) & Construction Defect team, who obtained a complete defense verdict in a three-week unified trial on a claim involving an accident at a construction site with allegations of negligence and violations of New York Labor Law § 241(6) and § 200. Plaintiff alleged he sustained injury to both his lumbar spine and his right knee, requiring six surgeries and the implantation of a spinal cord stimulator, and the demand of the plaintiff never dropped below the $6MM in available coverage. If you are unfamiliar with the stringent NYS Labor Law sections governing construction site accidents, this was quite an achievement!
I am also very proud to announce that Hurwitz Fine P.C. was ranked as a Tier One Law Firm in the 2023 U.S. News & World Report and Best Lawyers®.
In industry news, New York’s Litigation Coordinating Panel ordered coordination of COVID-19 nursing home cases. See below for more detailed analysis.
Also, just this week, the United States Supreme Court declined to hear a case finding that preemption and immunity under the Public Readiness and Emergency Preparedness (PREP) Act does not preclude state law negligence claims from being asserted against medical providers for care rendered during the pandemic, thus for the time being keeping COVID care cases out of federal court.
Further, we have been closely monitoring the status of the proposed 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 who can seek recovery in a death claim. The bill passed both the New York Senate and Assembly, and it seemed likely that the Governor would sign it after the November elections, however there is a renewed lobbying effort against its passage due to the dramatic increase it would cause to health insurance premiums and negative impact on health care in New York.
I want to thank Elizabeth Adymy and Jonathan Schutrum for their contributions to this newsletter and this month’s case reviews. In addition to the LCP decision ordering coordination of COVID-19 nursing home case, and our own exciting EDTPA immunity decision from the Fourth Department, we have a flurry of other cases from across the state to report on this month:
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First Department affirms trial court ruling that nursing home financial documents are material and necessary to preparation of plaintiff’s claims of understaffing;
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First Department affirms dismissal of medical malpractice action on date of jury selection due to plaintiff’s failure to retain an expert;
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First Department affirms denial of medical provider’s motion to dismiss on statute of limitations as Governor’s Emergency Declarations acted as a toll of the statute of limitations, not a suspension;
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First Department reverses trial court, finding that plaintiff has cognizable claim to pursue medical malpractice action for pain and suffering of decedent based on theory that defendants failed to follow decedent’s directive in his living will and health care proxy;
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Second Department reverses trial court finding that hospital defendant waived venue defense by failing to timely object;
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Third Department holds that despite dismissal of action against two specifically named individuals, plaintiff may pursue a claim of vicarious liability against hospital related to the care others provided to the decedent.
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Latest News & Developments
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And after hearing arguments regarding the scope and parameters of coordination, the Panel orders with more particularity coordination of all cases against nursing homes, as defined in Public Health Law § 2801 (2), and residential health care facilities, as defined Public Health Law § 2801 (3), alleging that they failed to comply with governmental statutes, regulations, and guidance for protecting and caring for their patients, and/or failed to exercise reasonable care in protecting and caring for the patients during the COVID-19 pandemic, resulting in injury or death.
The Panel noted that “[d]espite the absence of mutuality of parties — the cases involve neither common plaintiffs nor common defendants — they present common questions of fact and/or law that are important to the determination of their claims. Specifically, plaintiffs in each case allege that defendants failed to comply with governmental statutes, regulations, and guidance for protecting andcaring for their patients, and that defendants failed to exercise reasonable care in protecting and caring for the patients.” In reaching its decision, the Panel found as support for its decision the proposition that the parties in each of these cases will be required to present expert opinions as to the standards for protection and care of residents at nursing homes and similar facilities during various stages of the COVID-19 pandemic.
The Panel also noted that the claims in all these cases involve common legal issues regarding statutory immunities, with the defendants commonly asserting that plaintiffs' claims are barred by New York's Emergency or Disaster Treatment Protection Act, known at the "EDTPA," which provides immunity to health care and long-term care facilities arising from claims related to the care of individuals during the COVID-19 pandemic. The EDTPA was repealed approximately one year after its enactment and the question arose as to whether the repeal was to be prospectively or retroactively applied. (That question was answered by the Fourth Department on October 7, 2022 in Ruth v Elderwood, finding that the repeal of the EDTPA is to be applied prospectively.)
The Panel concluded that while each action will involve facts unique to each plaintiff, including his or her medical needs and the practices, protocols and treatment provided at his or her respective nursing home or facility during the pandemic, and each action will involve unique facts regarding liability and damage, “the establishment of discovery schedules through coordinated case management can accommodate the diverse factual contexts presented."
Procedurally, the Panel has directed that one trial court in each of the four appellate divisions will be responsible for the coordinated actions. Venue for the coordinated cases have been designated as New York County (First Department), Nassau County (Second Department), Albany County (Third Department) and Erie County (Fourth Department). Administrative judges for each judicial district involved in handling the coordinated cases have been assigned the task of appointing the particular court to preside over these cases.
This ruling begs the question of how is the COVID-19 pandemic to be defined? Is it to be defined by the dates of the COVID-19 Disaster Emergency declared by former Governor Andrew Cuomo, pursuant to Executive Order 202 issued on March 7, 2020 and which was rescinded effective June 25, 2021? Arguably, the pandemic is still ongoing. In addition, is the Panel’s decision limited to those action involving COVID-19 related deaths and injuries or all deaths and injuries during the pandemic? The Panel’s reference to the care provided to “patients” rather than residents raises further questions regarding the standards to be applied in assessing the nursing homes’ provision of services.
Stayed tuned for further developments.
SCOTUS Denies Nursing Home Petition, Keeping COVID Care Cases Out of Federal Court — For Now
On November 21, 2022, the United States Supreme Court declined to hear a case finding that preemption and immunity under the Public Readiness and Emergency Preparedness (PREP) Act does not preclude state law negligence claims from being asserted against medical providers for care rendered during the pandemic.
While this is an initial blow to the industry seeking protection from suit under the PREP ACT, analysts believe that other appeals coming up through the appellate system may be better situated for cert acceptance at the Supreme Court.
Hochul Faces Renewed Veto Calls For Expansion of Wrongful Death Law
A proposal to expand and update New York's century-old wrongful death law to include emotional anguish has become the subject of renewed lobbying in Albany before the bill heads to Gov. Kathy Hochul's desk for final consideration. If approved, the measure would expand the ability of a person to bring a wrongful death claim for emotional loss or suffering when a loved one dies. Existing statutes cover claims for so-called pecuniary losses -- a financial loss that is experienced due to a death. Supporters of the change to expand to emotional anguish provisions have argued the existing law negatively affects children, people of color and lower-income families. But local governments and business organizations have urged Hochul to veto the legislation when it comes to her desk, pointing to the potential cost they would shoulder as a result, which could have a negative impact on health care across New York.
New York Revises Nursing Home Minimum Staffing Penalties Just Months After Implementation
The New York State Department of Health is revising its minimum staffing regulations for nursing homes just months after the policies were officially implemented in April. A $300 per day minimum penalty was removed from legislation if there is an “extraordinary circumstance,” like severe staffing shortages or an ongoing union dispute.
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Analysis of Recent Court Decisions
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October 6, 2022 Granitto v Kings Harbor Health Services
Appellate Division, First Department
First Department affirms trial court ruling that nursing home financial documents are material and necessary to plaintiff’s claims of understaffing.
Plaintiff moved to compel defendant nursing home to produce certain documents (cost reports, payroll-based journal reports, and survey reports), arguing them to be material and necessary to preparation of her claims that understaffing at the nursing home facility and inadequate financial allocation to staffing were among the circumstances leading to plaintiff's decedent's death. The trial court granted the motion. The First Department affirmed the trial court’s order noting that while the period of time covered by plaintiff's document demands is broad, it found no basis for substituting its discretion for that of the motion court, especially given that the defendant did not assert privacy interests or show that production would be unduly burdensome.
October 13, 2022 Tunell v Maynard
Appellate Division, First Department
First Department affirms trial court ruling that nursing home financial documents are material and necessary to plaintiff’s claims of understaffing.
The action was dismissed by the trial court premised on the plaintiffs’ default, namely their failure to retain an expert witness for trial. Plaintiff’s counsel submitted an affirmation to the court establishing that despite efforts to identify and retain an expert who would support the plaintiffs’ case at trial, his efforts were ultimately unsuccessful. The First Department rejected the plaintiffs’ argument of law office failure, given their counsel’s affirmation of the efforts undertaken to retain an expert. The First Department also rejected the notion that it would have been more appropriate to grant an adjournment or strike the case from the trial calendar, so that the case could be resolved on the merits, as plaintiffs had more than enough time to secure an expert witness for trial.
November 1, 2022 Murphy v Harris
Appellate Division, First Department
Defendant medical provider’s motion to dismiss on statute of limitations denied as Governor’s Emergency Declarations acted as a toll of the statute of limitations, not a suspension.
Plaintiffs initially commenced an action on November 3, 2020. On February 12, 2021, plaintiffs served an amended summons and complaint naming the moving defendants and alleging three causes of action as against them: wrongful death, conscious pain and suffering, and loss of consortium and services. The conduct at issue took place on May 18, 2018. The defendants moved to dismiss the complaint premised on the argument that the series of executive orders issued by then-Governor Andrew Cuomo, as a result of the COVID-19 pandemic, constituted only a suspension, not a toll of the applicable statutes of limitations. The court observed that “a toll suspends the running of the statute of limitations for a finite time period, whereas a suspension only delays the expiration of the time period until the end date of the suspension.”
The court concluded that according to its terms, Executive Order No. 202.8, as initially enacted, “tolled” any “specific time limit for the commencement, filing, or service of any legal action” and that the toll lasted until the final extension of EO 202.8, which expired on November 3, 2020. The court then addressed each of the causes of action alleged and whether they were timely interposed given the toll arising from Executive Order 202.8:
Plaintiffs’ wrongful death claim accrued on September 30, 2018 and had a two-year statute of limitations (EPTL 5–4.1). Plaintiffs’ wrongful death claim was tolled on March 20, 2020 and had a remaining limitations period of six months and 10 days, which started to run again after November 3, 2020 Thus, plaintiffs’ wrongful death claim was timely on February 12, 2021. Irrespective of whether plaintiffs’ conscious pain and suffering and loss of consortium claims sounded in medical malpractice or general negligence, it is undisputed that these claims accrued on May 10, 2018. The statute of limitations for a medical malpractice claim is 2½ years (CPLR 214–a) and the statute of limitation for other personal injury claims is three years (CPLR 214). On March 20, 2020, these claims had a remaining limitations period of seven months and 20 days and one year, one month and 20 days, respectively. Thus, plaintiffs’ conscious pain and suffering and loss of consortium claims were also timely on February 12, 2021.
November 17, 2022 Lanzetta v Montefiore Medical Ctr.
Appellate Division, First Department
Plaintiff has cognizable claim to pursue medical malpractice action for pain and suffering of decedent based on theory that defendants failed to follow decedent’s directive in his living will and health care proxy.
Plaintiff commenced an action against defendants alleging medical malpractice based on various health proxies and forms filled out by the decedent in 1993 and 2016. Plaintiff claims that defendants breached their agreement with the decedent by administering antibiotics and IV hydration that prolonged his life. The First Department, in contrast to the trial court, found there to be issues of fact precluding summary judgment in the defendants’ favor. If found to be unclear whether the 1993 healthcare proxy (and the living will), the 2016 healthcare proxy or the 2017 FLST governed this dispute and whether the 2016 health care proxy was revoked by decedent through conversations with his agents, pursuant to Public Health Law § 2985(a). The court also found it to be significant that it was not clear from the record whether the treatment prolonged decedent's life, as neither side submitted an expert affidavit. Finally, the court concluded there to be a question as to whether decedent's health care agents approved the very treatment for which they now seek to hold defendants liable.
Plaintiff has cognizable claim to pursue medical malpractice action for pain and suffering of decedent based on theory that defendants failed to follow decedent’s directive in his living will and health care proxy.
Plaintiff sought leave to file a late notice of claim against defendant New York City Health and Hospitals Corporation (NYCHHC) related to pre-natal care and her delivery of a stillborn baby. The action was commenced in Queens County; however, Section 20 of the New York City Health and Hospitals Corporation Act states that actions against NYCHHC “shall be brought in the City of New York, in the county within the city in which the cause of action arose.” Because the alleged malpractice occurred in New York County, not Queens County, the court denied the petition and dismissed the proceeding on the grounds of improper venue. Notably, improper venue was not raised as an issue in the defendant hospital’s opposition papers.
Reversing the trial court’s decision, the Second Department found that “while couched in mandatory language” venue provisions are “not jurisdictional in nature.” As a result, a party may implicitly “waive proper venue as a matter of right” in an action or proceeding that is filed “in an improper county … if it does not timely demand or move for a change of venue in accordance with CPLR 510 and 511. Thus, even though the alleged malpractice occurred in New York County, the defendant hospital waived any objection to the venue of the proceeding by not properly raising such an objection.
The court went on to state that “in the absence of a motion or consent, a court has no authority to sua sponte change the venue” or “in effect, do so by dismissing the action or proceeding.” The lower court erred by raising the issue of improper venue sua sponte and dismissing the action on that basis.
October 20, 2022 Fasce v Catskill Regional Medical Center
Appellate Division, Third Department
Despite dismissal of action against two specifically named individuals, plaintiff may pursue a claim of vicarious liability against hospital related to the care others provided to the decedent.
The question before the court in this case was whether the trial court erred in granting summary judgment in favor of the hospital where the two individuals the plaintiff named and for whom the plaintiff sought to hold the hospital vicariously liable, were dismissed from the action. The plaintiff’s bill of particulars broadly stated that the hospital “is vicariously liable for the negligence of its agents and employees, including” the two individuals who were dismissed from the action. Based on the dismissal of the action as against those two individuals, the hospital moved for summary judgment. The Third Department stated the question presented to be “whether plaintiff may pursue a claim of vicarious liability related to the care others provided to the decedent.”
The court found that the plaintiff, in opposing the hospital’s motion, identified another individual who had treated the plaintiff’s decedent, a hospitalist, and that the theory of liability asserted against the hospitalist was consistent with a theory of liability set out in the plaintiff’s complaint and that the plaintiff’s expert’s affirmation was sufficient to raise an issue of fact with regard to the care and treatment rendered by the hospitalist. The court pointed out that “[t]he word ‘including’ is not exclusive, leaving open the prospect that vicarious liability was premised on the negligence of other providers.” The court reversed the trial court’s order and reinstated the plaintiff’s complaint.
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Hurwitz Fine's Medical Malpractice & Nursing Home Defense Team
is here to answer your questions:
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