Medical & Nursing Home Liability Pointers - 8/30/21


Hurwitz & Fine's
Medical & Nursing Home Liability Pointers

August 30, 2021


  A Message from V. Christopher Potenza


Vaccines continue to dominate the news cycle, and rightly so.  On the heels of the New York State Department of Health issuing emergency regulations requiring nursing homes to offer their employees and residents COVID-19 vaccinations, former Governor Andrew Cuomo, on his way out the door, mandated that all healthcare workers in New York State are required to be vaccinated against COVID-19.   Will it stick?  Well, a federal court in Texas has recently upheld the validity of a hospital’s mandatory COVID-19 vaccination policy.  This is an issue we will certainly be watching.

Our Labor & Employment Team continues to keep us up-to-date on COVID-19-related employment questions and claims, including guidance on whether an employer can mandate a COVID-19 vaccine.   Check out their latest piece, What Employers Need to Know About Long COVID-19 Disability Claims.
COVID-19 continues to create havoc for the court system.  Although courts are open, and judges are furiously trying to ease the backlog of cases, the Delta variant and steep increase in COVID-19 cases has resulted in the re-institution of a mask mandate in all New York State Courts, regardless of vaccination status.  While necessary, this is not welcome news for trial lawyers.
The courts have also been quite busy with last minute filings as the one-year extension of the deadline for filing claims under the Child Victims Act, the law that temporarily lifted the statute of limitations for adult survivors of child sexual abuse, expired in August.  Please know that our Child Victims Act and Sexual Misconduct Coverage and Defense Team is here for all your defense and coverage needs. 
In a case that we have been following closely, a federal judge rejected a nursing home’s argument that federal law preempts, and thereby precludes, any COVID-19-related negligence claims, and remanded the case back to state court to be litigated. 
In other decisions of note this month, the Second Department vacated a medical malpractice defense verdict, finding that plaintiff should have been able to offer expert opinion that that defendant’s conduct diminished the plaintiff’s chance of a better outcome or increased the injury.  The Second Department also held that a thoracic surgeon was qualified and should have been permitted to render an expert opinion as to the proprietary of wound care provided to a plaintiff.


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

New York Issues Emergency Regulation Regarding Nursing Home Vaccine Mandates
Earlier this month, the New York State Department of Health issued Section 16 Orders to all hospitals and long-term care facilities in the state to ensure that all employees are fully vaccinated against COVID-19. Key highlights of this regulation include:

  • Effective immediately, all nursing homes must offer all consenting, unvaccinated existing personnel an opportunity to receive the COVID-19 vaccine;
  • The operator and administrator must ensure that all new personnel (including contract staff), every new resident, and every re-admitted resident has an opportunity to receive the COVID-19 vaccine within 14 days of having been hired, admitted or readmitted;
  • Conspicuous signage that the facility offers COVID-19 vaccination must be posted throughout the facility, including at points of entry and exit and each residential hallway;
  • All personnel and residents who decline to be vaccinated must be provided a written affirmation for their signature acknowledging that they were offered the opportunity for a COVID-19 vaccination but declined. The Affirmation must state that they are aware that, if they later desire to be vaccinated, it is their responsibility to request the vaccination from the facility. These affirmations must remain on file at the facility and made available to the DOH on request;
  • Nursing homes must certify to the DOH weekly that the facility has proactively offered all new unvaccinated residents and personnel an opportunity to obtain the COVID-19 vaccination within 14 days of being hired, admitted, or readmitted.

Subsequently, on August 16, 2021, former New York Governor Cuomo announced that all healthcare workers in New York State are required to be vaccinated against COVID-19, with the first dose of the vaccine to be administered no later than September 27, 2021.
New York’s Department of Health then issued its Order for Summary Action on August 18, 2021, which provides additional details regarding the state’s vaccine mandate. Key highlights include:

  • The Order currently applies to covered entities i.e. a general hospital or nursing home pursuant to section 2801 of the Public Health Law;
  • The Order applies to personnel who engage in activities such that if they were infected with COVID-19, they could potentially expose patients, residents, or personnel working for such entity to the disease;
  • Employees may be exempt from the vaccine mandate on certain medical or religious grounds;
  • Covered entities must develop a policy and procedure to ensure compliance with this Order;
  • Covered entities may be requested to report the number and percentage of covered personnel who have been vaccinated against COVID-19 and the number of personnel for which medical or religious exemptions have been granted;
  • The Department of Health may require all covered personnel, whether vaccinated or unvaccinated, to wear acceptable face coverings for the setting in which they work; and
  • There are procedures by which a covered entity may contest the Order and may present any proof that failure to implement and comply with the requirements of this Order does not constitute a danger to the health of the people of the State of New York.

Given that the advice regarding vaccine mandates for healthcare workers is fluctuating weekly, and sometimes daily, we will continue to monitor the information provided by the Department of Health and recently sworn New York State Governor Hochul to report to our readers. We anticipate further guidance to be announced regarding how a healthcare worker may demonstrate a religious objection or medical contraindication to vaccination, how those objections or contraindications can be reasonably accommodated, whether vaccines administered outside of the United States are accepted under the mandate, and whether the mandate applies to home care workers in addition to those who work in congregate care settings.

Senate Legislation Would Boost Staffing and Oversight
The Nursing Home Improvement and Accountability Act of 2021 has been introduced to the Senate as part of a broader overhaul of long-term care. Some of the main provisions of the Senate Bill would:

  • Raise salaries and benefits for nursing home staff by giving states the option of an increase in federal Medicaid matched funds, available over six years. This would appease critics of staffing mandates – also included in the bill – who state that they would not be able to remain open if required to increase employees’ salaries or the number of staff present;
  • Require nursing homes to have an infection prevention and control specialist;
  • Require nursing homes to have a registered nurse available 24 hours per day, instead of the current 8 hours;
  • Bolster state inspections of nursing homes, and add more low-performing facilities to a “special focus” program that endeavors them to improve quality;
  • Forbid nursing homes from requiring residents and families to agree in advance to arbitration, thereby waiving their rights to go to court over disputes involving care.

The Bill would also launch an experiment to see if downsized nursing homes lead to better care and quality of life for residents. Those facilities would have between 5 and 14 residents, make private rooms available, feature accessible outdoor areas, and involve residents and families in decision-making.

The success of the Bill will likely be dependent on the financial repercussions – facilities need more money, not only to fulfil the requirements of the proposed Bill but also to fulfil the requirements of laws already in place. In New York State, we have seen a plethora of Bills passed this year, which will have a great impact on the functioning of facilities – it is hoped that the increase in Medicaid matched funds offered by this Bill would also offset those new requirements.
Long Island COVID-19 Nursing Home Case Can Proceed
We previously reported on the case involving Ana Zayas, a resident at Our Lady of Consolation nursing facility on Long Island who died of COVID-19 in 2020 whose daughter later filed suit against the facility. After the case was removed to federal court by the defendant – who claimed that the federal Public Readiness and Emergency Preparedness (PREP) Act preempts any state law regarding negligence cases during the COVID-19 pandemic – Our Lady of Consolation moved for the case to be dismissed.
The federal judge ruled in the plaintiff’s favor, rejecting the facility’s argument that the federal law preempts or exempts nursing homes from state negligence suits, and the case has been remitted to the state court in Brooklyn to be litigated.
We are closely monitoring this case and will report new developments to our readers.


Analysis of Recent Court Decisions

August 4, 2021            Cerrone v. North Shore-Long Island Jewish Health System, Inc. et al.
Appellate Division, Second Department
Second Department holds thoracic surgeon was qualified to render an expert opinion as to the proprietary of wound care provided to a plaintiff.
Plaintiff’s claims, sounding in medical malpractice, involved allegations of negligent care in 2008 resulting in the development of severe decubitus ulcers.  Defendants moved for summary judgment and in support, offered the expert opinion of a board-certified plastic surgeon and director of a regional hyperbaric and advanced wound healing center, who opined within a reasonable degree of medical certainty that the care and treatment provided to the plaintiff by the respondents was in accordance with good and acceptable standards of medical practice, and that the development of the plaintiff’s wounds were unavoidable even with the best treatment. 
In opposition to defendants’ motion, the plaintiff offered the opinion of a thoracic surgeon whose curriculum vitae made no specific reference to professional involvement in wound care until 2013, after the care and treatment at issue in the case had occurred, when he took a position as a medical director of a wound center.  Plaintiff’s expert opined that the defendants departed from the accepted standards of care and that such departure resulted in the development and worsening of decubitus ulcers.  The trial court determined that plaintiff’s expert was not qualified to render an expert medical opinion.
The Second Department reversed, holding that the entirety of the plaintiff’s expert’s training and experience rendered him qualified to opine on the plaintiff’s wound care in 2008.  The Second Department noted the expert’s affirmation that he had “practiced surgery and wound care for approximately 30 years and that by virtue of his training and experience, he was fully familiar with the standards of accepted practice in the field of wound care, as they existed in 2008.” As such, the Second Department reversed the trial court’s order dismissing plaintiff’s complaint as asserted against defendants.

August 18, 2021          Bilyavskiy v. Parikh
Appellate Division, Second Department
Second Department vacates defense verdict and remands for new trial, finding that the trial court should not have excluded plaintiff’s expert opinion that defendant’s conduct diminished the plaintiff’s chance of a better outcome or increased the injury on the grounds that such evidence was speculative. 

Plaintiffs’ medical malpractice lawsuit involved claims of a failure to timely diagnose septic shock following surgery to repair an intestinal perforation.  At trial, plaintiffs were prevented from offering expert opinions from which the jury may infer that the defendant’s conduct diminished the plaintiff’s chance of a better outcome or increased the injury, on the grounds that such evidence was speculative. 
The Second Department reversed, holding that the proposed testimony of the plaintiffs’ experts that the defendant deviated from accepted practices and decreased the injured plaintiff’s chances of a better outcome or increased the injury by failing to perform certain testing, was not based upon speculation. Rather, Second Department held that the proposed testimony was based upon specified medical findings made both before and after the injured plaintiff’s sepsis diagnosis, which, according to the experts, demonstrated the continued presence of infection capable of detection and earlier treatment. 
The Second Department concluded that the trial court’s erroneous evidentiary rulings prejudiced the plaintiff’s ability to establish a prima facie case of medical malpractice against the defendant, and the judgment was reversed, and the complaint was reinstated against the defendant and remitted for a new trial. 



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