Medical & Nursing Home Liability Pointers - 2/26/21

A Message from Chris Potenza
We have some good news for those anxious to get back into the courtroom as New York jury trials were announced to resume starting 3/22/21 in most NY Judicial Districts outside of New York City.  Criminal trials will take precedence and civil trials will need scheduling “approval” from the chief administrative judge for each district.  The ability to schedule trials will be limited by jurisdiction-specific protocols and actual courtroom availability.  While there is not much clarity yet as to when and how frequent civil trials will occur, at least there is progress. 
 
A civil trial that we are keeping close watch on however involves the Suffolk County Opioid Litigation, which is scheduled to commence in March following a year delay from Covid.  In this litigation, drug-makers and distributors face allegations that they are directly responsible for the cost of the public health crisis linked to the opioid drugs they sold. Although states and local governments have filed thousands of cases blaming drug companies and/or pharmacies for the opioid crisis, only one has gone to trial. That bench trial saw Oklahoma’s attorney general obtain a $465 million judgment against Johnson & Johnson, which has been appealed.
 
New York State’s nursing home communities were undoubtedly one of the hardest hit by the COVID-19 pandemic.  While there is much controversy surrounding the state’s response, state legislators are now rethinking and reforming New York’s nursing home regulations. With eleven new bills voted through in the NY State Senate this week, we anticipate significant upcoming guidance to facility administrators as these new requirements are rolled out in the coming year. New York has also updated its guidance and protocols for nursing home visitations.        
 
As our courts continue to work through their backlog, we have a few interesting decisions this month.  A trial court has determined that a claim of wrongful prolongation of life (in contravention to a living will) was deemed not an actionable claim under New York common law or statute.  An appellate court reversed a dismissal on informed consent, finding that the consent form was not specific enough to shield liability. The qualifications of an expert oncologist to opine on the standard of care for family medicine goes to the weight of the testimony, not its admissibility.  Broad allegations of physical injury and loss of enjoyment of life entitled defendant to disclosure of plaintiff's entire medical record, including psychiatric treatment. Lastly, claims against a first responder, including delay in response time, sound in medical malpractice and thus are subject to the two-and-a-half-year statute of limitations.

Senate Majority to Advance Legislation to Improve Oversight and Care at Nursing Homes
State senators voted to pass eleven pieces of legislation with the aim to better support and protect nursing home residents in the wake of the COVID-19 pandemic. The legislative package is wide ranging and includes:

• Patient Care Ratio Reporting - This bill directs the Commissioner of Health to establish a “Direct Patient Care Ratio” that would require all nursing homes to spend at least 70% of a facility’s revenue on direct patient care. More than 400 of the state’s 613 nursing homes operate as for-profit facilities. The 70% requirement does not include capital expenses. The model is based on the state’s Medical Loss Ratio standard for commercial for-profit insurers.
   
• Publication of Nursing Home Ratings – This bill requires that the most recent Center for Medicare and Medicaid Services (CMS) rating of every nursing home be prominently displayed on the home page of the Department of Health’s website and at each nursing home facility’s website and displayed at the facility for view by the general public.
   
• Reimagining Long-Term Care Take Force – This bill enacts the “Reimagining Long Term Care Task Force” to create a task force studying the state of both home-based and facility-based long-term care services in the state, and to make recommendations on potential models of improvement to long-term care services for older New Yorkers.
   
• Long-Term Care Ombudsman Program Reform Act – This bill expands the current “Long-Term Care Ombudsman Program” to be more accessible and available to seniors and their families, while promoting the volunteer advocate program and improve interactions between DOH and the Ombudsman program regarding complaints.
   
• Allowing Compassionate Care-Giving Visitors – This bill creates a standardized program to allow personal care and compassionate care visitors at nursing homes.
   
• Infection Inspection Audit – This bill directs the Department of Health to establish and implement an infection control inspection audit and checklist for residential care facilities.
   
• Quality Assurance Committees – This bill requires adult care facilities to include “quality assurance committees” in their quality assurance plans.
   
• Requirements for Transfer, Discharge and Voluntary Discharge – This bill creates requirements for the transfer, discharge and voluntary discharge of residents from residential healthcare facilities.
   
• Standards for Ownership of Nursing Homes – This bill creates more review of ownerships of nursing homes through the Certificate of Need (CON) process – including consideration of past violations at other facilities by owners – and requires more notice to the public during the CON process.
   
• Department of Health Death Records – This bill requires the Department of Health to record COVID-19 deaths of nursing home residents that died in hospitals to be recorded as a “nursing home” death and requires the Department of Health to update and share data it receives with hospitals and nursing homes on communicable diseases.
   
• Transparency of Violations – This bill requires residential healthcare facilities to disclose in writing to potential residents and their family members the website where a list of violations and other actions taken against the facility can be found.

We will continue to monitor the forthcoming guidance on this legislation and the projected implications that these new requirements will have on the operation of nursing homes in New York, and any potential liabilities arising for failure to comply.
 
 
Guidelines for New York Nursing Home Visitation Announced
New York State Health Commissioner Howard Zucker has announced guidelines that will allow visitors back into nursing homes from February 26 for the first time since the COVID-19 pandemic began nearly one year ago. The easing of restrictions comes after 72% of nursing home residents in the state have been vaccinated as part of the federal vaccine program, with the remaining 28% of residents having declined.
 
One of the requirements is for rapid testing visitors on-site if the county has a COVID positivity rate of over five percent on a rolling seven-day average at no cost to the visitor. There would be no required testing if a county has a lower positivity rate or if the visitor has proof of vaccination, but testing of all visitors regardless is still encouraged.
 
Nursing homes must provide separate visitation spaces or be able to hold visitations in a resident’s room, and the number of visitors permitted are limited to 10% of the nursing home resident census at any time. Only two visitors will be allowed per resident at any one time, and visitors under the age of 18 are prohibited.  Facilities also must enforce pandemic protocols like mask wearing, washing hands, temperature checks and social distancing.
 
The previous rule barring visitors from nursing homes that have had a COVID case within 14 days remains in effect.

January 16, 2021    Joseph Lanzetta, as Executor of the Estate of Pasquale Lanzetta, v. Montefiore Medical Center, et al.
Supreme Court, County of Bronx
Summary judgment granted where Plaintiff’s claim of wrongful prolongation of life was deemed not recognizable by either New York common law or statute.
 
In this action sounding in medical malpractice and negligence, Plaintiff sought to recover damages for the pain and suffering experienced by Decedent during the approximately 20 days that Decedent lived after being administered life-sustaining treatment in contravention of both Decedent’s living will and the directives of Decedent’s duly appointed health care agent.
 
Plaintiff’s claim was, in effect, one for wrongful prolongation of life. A “wrongful life” claim typically refers to a claim by a parent or other guardian on behalf of an impaired child based on the theory that the child would have been better off had he or she never come into being. A “wrongful life” claim is not cognizable in New York because as a matter of public policy, an infant born in an impaired state suffers no legally cognizable injury in being born compared to not having been born at all. The comparison between the choice of life in an impaired state and nonexistence is not a comparison the law is equipped to make. As such, Plaintiff’s claim was neither cognizable under New York’s common law nor recognized by statute and summary judgment was granted.
 
 
January 27, 2021    Rommy Preciado v. Claudia Ravins et al.
Appellate Court, Second Department
A generic consent form signed by the plaintiff, which does not contain any details about the procedure to be performed, does not establish informed consent.
 
Plaintiff commenced this action to recover damages relating to a surgery performed on the wrong site by Defendant Ravins. Instead of removing an abscess on Plaintiff’s leg, Defendant operated to remove a cyst on her left Bartholin gland, resulting in physical and psychological injury.
 
As to the lack of informed consent cause of action, the fact that Plaintiff signed a consent form does not establish Defendants’ entitlement to judgment as a matter of law where, as here, the form was generic, and beyond a barebones handwritten notation of the areas of the body to be performed on, did not contain any details about the operation. The form did not even indicate the procedure to be performed, but merely listed an area of the body and a condition. Accordingly, the Trial Court erred in granting Defendant’s motion for summary judgment and the order was reversed.
 
 
January 27, 2021    Joseph DiLorenzo v. Baruch Toledano et al.
Appellate Court, Second Department
Broad allegations of physical injury and loss of enjoyment of life put Plaintiff’s entire medical record, including psychiatric treatment, in controversy and it was those records were discoverable.
 
In this action to recover damages for medical malpractice and lack of informed consent, the Plaintiff appealed from an Order compelling Plaintiff to authorize the release of treatment records from his psychiatrist and denied Plaintiff’s cross-motion for a protective order preventing disclosure of those records.
 
The Appellate Court upheld the decision that Plaintiff had affirmatively placed his entire medical condition in controversy through the broad allegations of physical injuries made in his bill of particulars and during his deposition, and the claimed loss of enjoyment of life due to those injuries. Moreover, Plaintiff’s previous mental health condition was deemed material and necessary to the issue of damages, if any, recoverable for his claimed loss.
 
 
January 28, 2021    Judith Goldschmidt, as Executor of the Estate of Harry Baker v. Cortland Regional Medical Center et al.
Appellate Court, Third Department
Plaintiff’s expert oncologist was qualified to opine on the standard of care for family medicine due to his experience, certifications, and the nature of the action.
 
In January 2012, Plaintiff presented to Cortland Regional Medical Center (CRMC) with complaints of dizziness. Test results revealed a small mass in his lung which was diagnosed as “likely benign” and follow-up scans every two months were recommended. These scans continued until September 2012 when Plaintiff sought a second opinion who diagnosed the mass as lung cancer and scheduled surgery to remove it. Plaintiff went into remission, but the lung cancer returned in January 2014, quickly metastasized to his brain, and he died from the cancer in January 2015.
 
Defendants contended that Plaintiff’s expert, specialized in the field of oncology and hematology, was not qualified to opine on the standard of care for family medicine. The Appellate Court found that Plaintiff’s expert was qualified to opine on this standard and that he had laid a sufficient foundation to render his opinion. Although the absence of the same specialty could perhaps impact the weight given to the opinion, it does not render it inadmissible as a medical expert does not have to be specialized in the same field as the defendant doctor. Here, though Plaintiff’s expert did not practice in family medicine, his experience as an oncologist taken with his board certifications and the nature of the action formed sufficient basis to infer that his opinion is reliable.
 

February 4, 2021    Anastasia Xenias, as Administrator of the Estate of Mike Xenias v. Mount Sinai Health System, Inc., et al.
Appellate Court, First Department
Claims based on first responders’ improper treatment or delay arriving at the scene are founded in medical malpractice and thus subject to the two and a half year statute of limitations.
 
The Appellate Court held that Plaintiff’s claims against a first-responder were founded in medical malpractice and thus time-barred by the statute of limitations. The majority of Plaintiff’s claim was based on a first responder’s alleged improper treatment of the decedent, which involved specialized medical knowledge and bears a substantial relationship to the rendition of medical treatment. Additionally, to the extent Plaintiff’s claim was based on Defendants’ delays in arriving at the scene, it still sounded in medical malpractice, as such issues of response time speak directly to the question of patient care, which in turn bears a substantial relationship to a patient’s over-all medical treatment. As such, Plaintiff’s claim was time-barred, and the action was correctly dismissed.

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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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