Nursing Home Legal Alert - 11/20/2020

Hurwitz & Fine's COVID-19 Legal Alert: 
Medical & Nursing Home Liability

Weekly News Alert
Friday, November 20, 2020
An important message from the Hurwitz & Fine COVID-19 Response Team
A Note from Stephanie McCance
As the season of giving thanks approaches, the seemingly inevitable second shutdown inches nearer here in New York.  Erie County has been designated an “orange zone,” closing gyms, hair salons, etc., and forcing schools to once again go remote.  Jury trials, which we were so eager to announce last month were beginning to resume, have now again been suspended indefinitely in New York State. Though the winter may seem bleak, we remind our readers to stay positive, test negative, and document everything!
On the legal front, we do have some good news from our team to share as a hard fought trial victory from Pat Curran was successfully defended on appeal by Chris Potenza.  Plaintiff was a middle-aged female with underlying multiple sclerosis which limited her mobility upon admission to a rehabilitation facility following shoulder surgery.  A pressure ulcer on her coccyx was noticed shortly after admission, was treated, and healed.  Plaintiff alleged negligence and fraud, seeking punitive damages for alleged intentional and fraudulent documentation and manipulation of plaintiff’s treatment records.  The jury completely rejected plaintiff’s fraud and punitive damages claim and awarded a modest sum for past pain and suffering.  On appeal, plaintiff sought judgment as a matter of law on a violation of Public Health Law § 2108-d, which would have entitled her to attorney’s fees, on the basis that the jury could not have found negligence without finding a violation of the PHL regulations concerning the care and treatment of pressure sores.  Plaintiff’s appeal was denied and our client can now rest easy knowing this long ordeal is behind them and they can focus on the care and treatment of their residents in this difficult climate.

This week, we discuss the new staff testing and visitation rules implemented for nursing home facilities in New York, and the mounting concerns regarding further PPE shortages statewide. Additionally, we bring you news of the growing COVID-19 fines levied against health care facilities for pandemic violations, and a recently proposed housing study aimed at reducing the spread of contagious diseases in nursing homes. Finally, we bring you a lawsuit recently filed by a prominent nursing home group against a local law firm for allegedly defamatory statements made in relation to the pandemic.

From everyone here at Hurwitz & Fine, we wish you a happy and safe Thanksgiving.  Follow guidelines, act responsibly, and be appreciative of all that you do have despite the challenges of 2020. 
Nursing Homes Face New Staff Testing Rules and Visitation Restrictions
The new COVID-19 rules implemented on November 10, 2020 include testing all nursing home staff twice weekly in the yellow, orange and red zones hit hardest by rising cases. That is an increase from the once-per-week testing required of nursing home facilities outside of the zones. If testing is not done onsite at the facility, the nursing home must make sure that testing for their staff is free of charge and reasonably accessible, and they have to provide staff with a computer and printer for making records of test results.
Visitation will also be suspended inside the orange and red hot zones, with exceptions for end of life care and other limited cases of medical or clinical necessity, such as if a visitor is deemed essential to the care of the patient as determined by the facility and treating provider. Necessary legal representatives are also exempt from the visitation ban.
These measures come as New York continues to deploy a cluster containment strategy that imposes restrictions on activity in communities where cases are rising faster than the rest of the state. These new rules mark a turnaround from September, when coronavirus cases had hit the lowest point since the pandemic began and state officials eased restrictions on visitation.

Nursing Home Operator Sues Buffalo Law Firm Over COVID-19 Comments
The McGuire Group, a Buffalo company that runs five area nursing homes, recently sued the Losi & Gangi personal injury and workers’ compensation firm, accusing it of exploiting the COVID-19 pandemic to threaten the nursing homes with frivolous cases. It is alleged that two Losi & Gangi attorneys made defamatory statements about the company to drum up business as the coronavirus ravaged staff and residents in care facilities.
It is claimed that Losi & Gangi attorneys falsely stated that the McGuire Group failed to distribute personal protective equipment to employees, that they locked PPE in a storage room to prevent employees from protecting themselves, and that the company regularly mistreats and abuses employees and residents and provides poor care. It is further claimed that Losi & Gangi attorneys solicited employees of the McGuire Group to bring workers’ compensation lawsuits against the company. A search of the state court’s electronic filing system did not show any cases in which Losi & Gangi filed suit against the McGuire Group or their facilities.

NY Health Care Leaders Concerned About Repeat of PPE Shortages
As COVID-19 cases continue to surge across New York, medical masks and gloves are once again becoming increasingly scarce as New York’s health care leaders strive to prevent a repeat of the protective gear shortages that fueled infections in the spring.
The supply chain gaps are most keenly felt by the thousands of independent doctors who struggle to compete with hospitals, nursing homes, and government agencies stockpiling PPE. In fact, around one-third of physicians in New York say PPE access and affordability issues are impacting their ability to care for patients. The price of PPE has risen by around 25% or more since the spring, with boxes of 150 vinyl gloves rising from $4 to nearly $13.
Around 95% of nursing homes currently have the 60-day stockpile of PPE required of facilities by the state, with the remaining 5% working daily to meet requirements. Hospitals however have struggled to maintain the 90-day stockpile required of them, with most having currently secured a 60-day supply. To date, nursing homes statewide have collected a net total of about 88 million pieces of PPE, a 300% increase since the end of April. While New York does have a strategic stockpile of PPE, the details of these supplies remain secret as the Department of Health continues to decline releasing specifics to the public. What is known at present, is that the state’s PPE numbers will continue to fluctuate in the coming weeks as the virus continues to spread.

COVID-19 Workplace Safety Fines Approach $2.5Million
The U.S. Department of Labor’s workplace safety arm has now issued almost $2.5Million in workplace safety fines related to COVID-19 since the beginning of the pandemic. Nearly all of the establishments cited for violations have been nursing home and medical facilities.
New Jersey remains the state with the most violators, with six other states named: Connecticut, Illinois, Massachusetts, New York, Rhode Island, and Texas. The establishment facing the highest penalty is the New Jersey Addiction Treatment Center LLC, which faced a fine of $26,988 for not having a proper respiratory protection program and not providing respirators when necessary.
OSHA has ramped up the pace of its violations after the agency initially faced scrutiny over its allegedly slow response to complaints. The uptick in citations is largely because the agency has up to six months to complete an inspection, so the recent citations relate to complaints from the spring.

Proposed Study to Reduce Contagious Disease Spread in Senior Living Facilities
U.S. Rep. John Katko (R-NY) recently unveiled a bipartisan bill that calls for a federal study on how housing design could help prevent the spread of communicable diseases in nursing homes and assisted living facilities. The Keeping Seniors Safe from COVID-19 Through Home Design Act, H.R. 8540 would require the secretaries of both the U.S. Department of Health and Human Services and the U.S. Department of Housing and Urban Development to conduct the housing design study.
The study would consider the potential advantages of, for example, updated HVAC systems, installation of hands-free sinks, and redesign of building layouts in protecting older Americans from highly contagious diseases.
Hurwitz & Fine's COVID-19 Medical & Nursing Home Defense Team
With over 50 years of combined experience in defending doctors, nurses, and medical professionals, as well as hospitals, institutions, and nursing homes, the Hurwitz & Fine COVID-19 Medical & Nursing Home Defense Team is here for you.  The medical field and nursing home community are facing incredible pressure in dealing with this current COVID-19 outbreak that is stretching resources beyond capacity.  We are here to defend our caregivers on the frontlines of this unprecedented pandemic from claims of negligence and malpractice. 

Our defense team has the trial results and experience to vigorously defend our caregivers facing blame in these most trying of circumstances.  Patrick B. Curran has dedicated his 40-year legal career defending medical professionals and nursing homes from claims of negligence and malpractice.  He has also served as an adjunct faculty member at the University at Buffalo School of Law, and lecturer for the University at Buffalo School of Medicine and School of Nursing, as well as for other health care professional and community groups.  V. Christopher Potenza is a seasoned and trial-tested litigator, having obtained defense verdicts across New York State on complex matters. He has substantial experience defending claims at the federal, state, and appellate levels.  Stephanie L. McCance is also a member of the team, offering her international legal experience with strong analytic and organizational skills. 

As a public service, we are pleased to present this legal alert, which aims to provide our clients and subscribers with timely information on how the COVID-19 pandemic may impact medical and nursing home claims.  In some jurisdictions, newsletters such as this may be considered: Attorney Advertising.
If you know of others who may wish to subscribe to these legal alerts, please feel free to forward it. If you wish to subscribe or unsubscribe, please do so at the bottom of this newsletter.
Your COVID-19 Medical & 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])

For more information on our COVID-19 Legal Response Team,
including Business Services, Coverage, and Labor & Employment, click here.

For more legal updates regarding the coronavirus, click here.
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