Medical & Nursing Home Liability Pointers - 3/29/21

A Message from Stephanie McCance
As the weather continues to improve, millions of Americans continue to receive the COVID-19 vaccination in anticipation of being able to spend time in-person with loved ones this summer. With more Americans becoming eligible for the vaccine each day, Hurwitz & Fine Labor & Employment Attorney Joe Brown has written several articles that may be of interest to our readers offering guidance to employers on their responsibilities to staff:

• New York Issues Guidance on Paid Leave for Vaccinations
• New York Employees Now Eligible for Paid Leave When Getting the COVID-19 Vaccine; and
• My Employee is Fully Vaccinated: Now What?
   

With New York reporting the lowest levels of the virus since May 2020, nursing homes have been allowing in-person visitation once again, since restrictive measures were relaxed last month. Our very own Pat Curran enjoyed a wonderful visit with his mother, the first in nearly a year in which they were able to sit together, but due to a new COVID case on staff, visitation has once again been halted for 14 days under current state protocols. With the new federal guidance encouraging a relaxation of this particular rule, we hope to see increased in-person visitation in New York soon.
 
Last month we reported on a large legislation package passed by state senators aimed at providing wide-ranging nursing home reform in an effort to better support and protect residents in the wake of the pandemic. With the passing of this new additional legislation package and the repeal of immunity provisions granted in the wake of the pandemic, we may well be on the precipice of a momentous time in New York for the state’s nursing home and long-term care communities. As always, we will monitor and report to our readers on the progress of these bills and forthcoming associated guidance.
 
We have several interesting cases for you this month: The Fourth Department notably ruled that mental health physicians did not owe a duty of care to a patient’s son who was killed by his mother after she was unable to obtain additional treatment during a worsening of her condition, as medical providers owe a duty only to their patients except in very limited circumstances. We report on a decision noting that plaintiff’s failure to qualify her signed consent form at deposition overcame her claim for lack of informed consent. The Second Department found that a physician specializing in emergency medicine was unable to opine on the diagnosis and treatment of plaintiff’s stroke. Finally, defendants’ motion for summary judgment was denied when they failed to establish a prima facie case, as they failed to provide explanations for why they performed gallbladder removal surgery on a patient whose gallbladder was removed years earlier.
 
As always, keep staying positive and testing negative!

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.

Senate Passes Legislation Repealing Immunity Protections
This week, the state Senate unanimously passed the Treatment Protection Act, which repeals the previous immunity provisions that protected health care facilities, administrators, and executives from civil or criminal liability for any harm or damages alleged to have been caused by an act or omission related to the COVID-19 pandemic. Critics of the protections stated that they allowed care providers – particularly of nursing homes – to cut corners in the treatment of their residents. Proponents of the measures however advised that they were much needed at a time of great uncertainty, when regulations and guidelines for combating the virus changed almost daily.
 
The state legislature had already repealed a majority of the liability protections last July, and this new bill repeals the provision altogether. The bill does not include language to retroactively erase the immunity provisions that have been passed in the last year.
 
The legislation passed by the Senate includes:

• Emergency or Disaster Treatment Protection Act – This bill repeals the controversial liability protections granted to nursing homes, hospitals, and other healthcare facilities, as well as healthcare professionals treating patients during the COVID-19 pandemic.
   
• Mandatory Translation of Rights and Information on Long-Term Care Ombudsman Program – This bill mandates a prominent display to inform residents of the Long-Term Care Ombudsman Program and requires the Department of Health to translate the nursing home residents’ bill of rights into the six most common non-English languages spoken in New York State. The bill aims to increase awareness of the Program so that residents and loved ones may access the support available to them.
   
• Improved Certificate of Need Process – This bill will reform the review process for change of ownership or operations proposals brought before the Public Health and Health Planning Council. This added transparency aims to ensure nursing home assets and ownership information are made public.
   

The bill has now been sent to Governor Cuomo for signature. 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.
 
New Federal Guidelines Allow Increased Nursing Home Visitation
As millions of residents and workers at long-term care facilities nationally have received COVID-19 vaccinations, new federal guidelines for allowing more outdoor and indoor visitation at nursing homes are being reviewed for potential adoption in New York.
 
Among various changes, the new federal guidelines urge states to remove current restrictions requiring nursing homes to go 14 days without a new COVID-10 case before resuming visitation, a rule that has caused some frustration for residents and loved ones who have been able to resume in-person visitation, only for it to be withheld once again. The threshold is particularly difficult to maintain in larger facilities, with lobbyists advocating it could be eased based on the conditions of the facility and community in which it is located.
 
The measure comes after New York health officials revised state rules for nursing home visits and eased testing requirements for visitors on February 26.
 
Nursing Home Reform Bill Hits Congress
The American Health Care Association, representing more than 14,000 nursing homes and other long-term care facilities across the county, and LeadingAge, the association of more than 5,000 aging services providers, released a reform agenda this month – the Care for Our Seniors Act. The bill aims to address long-standing challenges affecting the quality of care provided in America’s nursing homes.
 
The Care for Our Seniors Act has four main reform principles with policy proposals in each of the key areas:

• Clinical – Enhance the quality of care in nursing homes by developing clearer standards for infection preventionists, requiring that each nursing home have a registered nurse on-staff 24-hours per day, and requiring a minimum 30-day supply of personal protective equipment in all nursing homes.
   
• Workforce – Strengthen and support the frontline caregivers by implementing a multi-phase tiered approach to attract, retain and develop more long-term care professionals leveraging federal, state and academic institutions.
   
• Oversight – Implement improvements establishing a more resident-driven system by developing an effective oversight system and processes that support better care and protect residents. This would include implementing a process to help turn around or close facilities that are chronic poor performers and adding customer satisfaction to the government’s five-star rating system to help monitor the quality of a facility for family members and guide consumer choice.
   
• Structural - Modernize nursing homes by conducting a national study on how to shift to more private rooms, which promote resident privacy, autonomy and dignity, as well as support infection control best practices.
   

Proponents of the bill say the reform will be costly, but long overdue. Each policy proposal in the Care for Our Seniors Act must include government resources, and AHCA and LeadingAge propose several interrelated investment strategies to help reinvest in America’s nursing homes to ensure quality care, including:
 

• Enhanced Federal Medical Assistance Percentages (EFMAP) – Increased federal Medicaid funds are provided to states to pay for the mandatory nursing facility benefit, with requirements that additional federal funds be used for nursing facility rates.
   
• Federal Framework for “Allowable Cost” or “Reasonable Cost” – Establish federal guidelines for state allowable cost definitions.
   
• Medicaid Rate Adequacy Requirement – Medicaid rates are brought up to equal the cost of care and subsequently updated regularly to keep pace with increases in costs of care.
   
• State Nursing Facility Value-Based Purchasing (VBP) Committee & Required Design Report – The state will be required to form and maintain a state health plan and nursing facility VBP committee with specific guidelines and deadlines to submit reports. This offers the potential for additional resources.

March 19, 2021           John Cardenas, as Administrator of the Estate of Abraham Cardenas v. Rochester Regional Health et al.
Appellate Division, Fourth Department
Physicians did not owe a duty of care towards the son of a mental health patient who was killed by his mother.
 
In this action for medical malpractice and wrongful death, plaintiff’s wife was hospitalized for several weeks due to her mental health status and was treated twice in the days immediately following her discharge. Plaintiff, prompted by his wife’s worsening condition, requested additional care over the course of two days, which was denied. Plaintiff’s wife then killed their son.
 
Defendants moved to dismiss the complaint against them, contending that they bore no duty to decedent because he was not their patient. The Trial Court denied their motion, but the Appellate Court here reversed, stating that generally, medical providers owe a duty of care only to their patients. Plaintiff does not allege here that his wife sought treatment specifically to prevent physical injury to decedent or her family, that defendants were aware whether she had threatened or displayed violence towards her family in the past, or that defendants directly put in motion the danger posed by the patient.
 
 
March 2, 2021             Yvette Bamberg-Taylor v. Berish Strauch MD et al.
Appellate Division, First Department
Defendants’ motion for summary judgment on the issue of informed consent appropriately granted where Plaintiff identified the written consent and testified she signed it at deposition, with no qualifications.
 
Plaintiff appealed from an Order granting defendants’ motion for summary judgment, in an action for medical malpractice and lack of informed consent following surgery which resulted in a large scar. Defendants submitted an affirmation from a medical expert establishing that the nature and extent of the complications were known risks of the procedure, and also submitted a written consent form that plaintiff signed indicating her understanding of the possible risks of the procedure.
 
In opposition, plaintiff’s expert failed to state that the surgery’s results were outside of the scope of expected complications. Notably, at her deposition plaintiff identified the written consent form and testified that she signed it, with no qualifications. Thus, plaintiff’s affidavit containing a belated claim that the consent she signed did not contain the description of possible risks and complications at the time she signed it, and that portion must have been added later, created only a feigned issue of fact insufficient to defeat defendants’ motion. plaintiff’s appeal was denied.
 
 
March 3, 2021             Elaine Laughtman v. Long Island Jewish Valley Stream
Appellate Division, Second Department
Medical Malpractice claim dismissed where plaintiff’s expert physician had no specific training or expertise in the appropriate specialization and had no experience diagnosing or treating plaintiff’s condition.
 
In an action to recover damages for medical malpractice, defendants appealed from a denial of their motion for summary judgment where plaintiff’s expert physician opined outside of her specialization.
 
Plaintiff alleged that defendant’s employees were negligent in failing to adequately monitor and treat her after she was admitted there due to a stroke, and that their failure to timey administer medicine resulted in paralysis on her left side. The affirmation of plaintiff’s expert, a physician with training in emergency medicine, lacked probative value as it failed to specify that the expert had any specific training or expertise in neurology or in the diagnosis and treatment of strokes, or how she became familiar with the applicable standards of care. As such, the Trial Court’s decision was reversed and defendant’s motion to dismiss was granted.
 
 
March 24, 2021           Mary Ruiz v. Oleg Opsha et al.
Appellate Division, Second Department
Defendants failed to establish prima facie entitlement to summary judgment where they failed to provide explanations for medical conclusions resulting in alleged unnecessary surgery to remove a gall bladder that had already been removed.
 
In an action to recover damages for medical malpractice, plaintiff appealed from an order granting defendants’ motions for summary judgment after defendants failed to determine that she had previously undergone surgery to remove her gallbladder, resulting in unnecessary gallbladder removal surgery.
 
The defendant surgeon could not state at his deposition that he had considered plaintiff’s medical chart prior to surgery, only that he “might have looked at something” and that it was “not routine” for him to look into “other documents and charts for a patient.” This fact was contradicted by defendants’ own expert affidavit. Furthermore, the defendant radiologist’s report stated, “gallbladder packed with stones” and his expert failed to explain the basis for such a conclusion considering plaintiff’s gallbladder had been removed years earlier. As such, defendants failed to establish prima facie entitlement to judgment as a matter of law and their motions for summary judgment should have been denied.

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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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