Nursing Home Legal Alert - 5/12/2020

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

Weekly News Alert
Tuesday, May 12, 2020
An important message from the Hurwitz & Fine COVID-19 Response Team
This legal alert contains some timely news on the impact of COVID-19 on medical and nursing home liability claims.  Despite the apparent immunity granted to care providers, including hospitals and nursing homes, and the continued tolling of the Statute of Limitations until, as of today, at least June 6, 2020, lawsuits have already begun.  There can be no dispute that the nursing home community has been hit the hardest by COVID-19.  The State of New York has ramped up its monitoring and investigation into these facilities, and just this past Sunday, Governor Cuomo announced mandatory twice per week testing of nursing home workers.  We also take a look at how other states are implementing immunity provisions to the health care industry during this pandemic.

Statute of Limitations Extended to June 6, 2020
Governor Cuomo issued the new Executive Order 202.28 late last week, under which the tolling of the Statute of Limitations currently in place has been extended to June 6, 2020. We anticipate that questions and challenges to these tolling provisions will be litigated, but we urge caution and interpret the tolling provision conservatively.

Class Action Filed Against NYC Adult Care Center
Residents of the Queens Adult Care Center in New York City have filed a putative class action in federal court, citing that they are in danger of contracting COVID-19 and that an estimated 15 residents have died because the assisted living facility is not taking proper precautions per State and Federal regulations.
Per the Complaint, the facility is neither screening residents nor staff for the virus, is not putting sanitary measures in place and is not properly isolating residents. Despite having some residents test positive for the virus as early as mid-March, residents are still allowed to wander freely through the facility and outside to the surrounding neighborhood.
The suit, which alleges violation to the Americans with Disabilities Act and the Rehabilitation Act, seeks an injunction forcing the facility to start implementing proper COVID-19 precautions. The facility has responded stating that the allegations are baseless, and that Queens Adult Care Center continues to adhere to all applicable guidelines.
We are closely monitoring this class action to determine how it will be viewed in light of Governor Cuomo’s Executive Orders granting broad immunity to healthcare facilities from litigation related to the COVID-19 pandemic, which we previously discussed here.

State Limits on Nursing Home Immunity Amid the COVID-19 Pandemic
With COVID-19 having spread nationwide and nursing homes experiencing a crisis situation, we take a look at the various measures implemented by states to limit liability at such facilities.
  • States that have afforded some legal immunity to nursing homes and other health care institutions and professionals in response to COVID-19:
    • Alabama, Arizona, Connecticut, Georgia, Illinois, Kentucky, Massachusetts, Michigan, Mississippi, New Jersey, New York, Nevada, Rhode Island, Vermont, and Wisconsin.
  • States that already had built-in protections shielding health care providers from being sued over their actions during emergencies:
    • Indiana, Louisiana, and Virginia
  • States shielding nursing homes from both civil lawsuits and criminal prosecutions over care affected by the crisis:
    • New York
  • States extending protections to decisions made due to a lack of resources:
    • New York, and Vermont
  • States imposing other restrictions:
    • Most states make exceptions for gross negligence, willful misconduct, and acting in bad faith.
    • Arizona’s Executive Order specifies that protections do not apply to rendering care while under the influence of alcohol or drugs.
    • Rhode Island’s Executive Order excludes negligence towards patients whose care wasn’t affected by COVID-19.
    • Massachusetts’s law leaves room to litigate over discriminatory conduct and for the state’s Attorney General to pursue consumer protection actions.
Healthcare Workers Fighting Coronavirus May Have Student Debt Forgiven
On May 5, 2020, New York Congresswoman Carolyn Maloney introduced a bill in the House of Representatives that would eliminate the student debt of health-care workers treating patients with COVID-19. The Student Loan Forgiveness for Frontline Health Workers Act, co-signed by nine other House Democrats, would forgive the outstanding balance of interest and principal due on the federal and private student loans of qualifying frontline healthcare workers.
The bill defines such workers as someone who is “certified under federal or state law to provide healthcare services and who provides COVID-related healthcare services” including doctors, medical residents, medical interns, medical fellows, nurses, home healthcare workers, and mental health professionals. The bill will also cover researchers who are working on treatments, cures, and vaccines for COVID-19. Importantly, the forgiven debt would not be counted as income.

A Note from Chris Potenza

Despite a declaration of “immunity,” lawsuits are already being filed, at least in federal court, and it is anticipated that a wave of suits will be filed as soon as the New York State court system is sufficiently operational to permit the filing of new lawsuits. An executive order granting immunity does not block a lawsuit from being filed, but rather is a defense that must be asserted and established by the defendant in seeking to dismiss the claim. Furthermore, a simple allegation of “gross negligence” will lead to lengthy discovery and protracted litigation before the merits of the allegations can be contested. The time is now to take the precautionary steps to defend these future claims.
The best defense against these suits is always to provide good care. While the Governor’s “immunity” order eases recordkeeping obligations during this time, the constant argument raised in these cases is that “if it's not documented, it didn’t happen.” To the extent possible given these extraordinary times, document everything you can, from policies and procedures, to individual patient and resident care, to employee monitoring and testing. Individual memory can be hazy under even the best of circumstances, but it will be even more so in a time of pandemic, when days and weeks all blend into one.
An ounce of prevention is worth a pound of cure.
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])

COVID-19 Business Interruption Team:
Steven E. Peiper, Esq. ([email protected])
Dan D. Kohane, Esq. ([email protected])
Lee S. Siegel, Esq. ([email protected])
Ryan P. Maxwell, Esq. ([email protected])

COVID-19 Labor & Employment Team:
Ann E. Evanko, Esq. ([email protected])
Andrea Schillaci, Esq. ([email protected])
Joseph S. Brown, Esq. ([email protected])
Amber E. Storr, Esq. ([email protected])
Katherine L. Wood, Esq. ([email protected])
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