This legal alert contains some late breaking news on the impact of COVID-19 on medical and nursing home liability claims. The courts in New York are slowly and cautiously re-opening as limited electronic filing on pending matters were permitted as of May 4, 2020. New lawsuits are still not permitted, and the tolling of the Statute of Limitations remains in effect and likely to be extended.
A new Administrative Order issued by the Chief Administrative Judge of the Court on May 2, 2020 has determined that courts shall not compel, for a deposition or other litigation discovery, the personal attendance of a physician or other medical personnel, including administrative personnel, who perform services at a hospital or other medical facility that is active in the treatment of COVID-19 patients. This Order is enacted to ensure that the time and services of medical personnel are best utilized in combating the virus, and will be in effect until the conclusion of the COVID-19 public health emergency.
New York State Department of Health previously issued guidance mirroring the Centers for Disease Control and Prevention (CDC) which allowed asymptomatic COVID-positive employees to return to work at a nursing home provided at least three days had passed since recovery from any symptoms and at least seven days had passed since symptoms first appeared.
This was rolled back on April 29, 2020, by Howard Zucker, Commissioner of Health, who issued new guidance to nursing home administrators which states that nursing home employees who test positive for COVID-19 may not return to work until at least fourteen days have passed since the onset of symptoms and at least three days have passed since resolution of fever and improvement of respiratory symptoms.
This move shortly followed reports criticizing State health officials for allowing asymptomatic COVID-positive nursing home staffers to work with COVID-positive nursing home residents and has been implemented to further reduce the risk of transmission among society’s most vulnerable to the virus.
We previously reported on Governor Cuomo’s announcement that the New York State Health Department and Attorney General’s Office will partner to inspect nursing home facilities to look for possible violations in their response to the COVID-19 crisis here. Any facility that is found to have violated regulations will be subject to a fine and may lose their operating license. The Governor has since enacted a new Executive Order providing further guidance on how offending facilities may be dealt with.
Executive Order 202.23 authorizes the Commissioner of Health to suspend or revoke the operating certificate of any skilled nursing facility or adult care facility if it is determined that such facility has not adhered to any regulations or directives issued by the Commissioner of Health, and if determined not to be in compliance the Commissioner may appoint a receiver to continue the operations on 24 hours’ notice to the current operator.
This Order may provide some peace of mind to residents, family and staff at facilities who may be concerned that a suspension or revocation of an operating license will result in an immediate halt of services. It should serve as a sobering reminder to facility administrators of the consequences of noncompliance with regulations.
Investigations are in fact beginning. As reported in today’s Buffalo News, State investigators in cooperation with the Erie County Health Department are beginning inspections of six Western New York nursing homes per week. They will perform COVID-19 testing of all staff and residents, assess adequacy of PPE and ensure nursing homes are isolating residents who test positive. If those measures have been implemented, the media should be reporting good news in the weeks ahead.
With a myriad of negative reporting on the responses by nursing homes dealing with the COVID-19 pandemic, we are pleased to present this heartwarming piece highlighting the thousands of individual health care providers dedicated to caring for those residents on the front line.
Stressing the importance of being able to provide a compassionate presence in such times - described by Buffalo News reporter Lou Michel as a ‘labor of love’ - this is a thought provoking article detailing the immeasurable commitments made by nursing home staff statewide.
A Note from Pat Curran
When COVID-19 lawsuits are filed against nursing homes over the next several years, how will these rapidly changing developments be remembered by plaintiff and defense attorneys? Facilities may be faulted for forcing COVID-positive employees back to work thereby exposing residents and co-workers to the virus. It is another example of facilities being understaffed because they did not have a sufficient workforce prior to the outbreak, plaintiff lawyers will argue. Defendants will point to the fact even the State’s Health Commissioner reversed himself as new information became known. No one had the perfect answers in the midst of the pandemic. Scrutiny of nursing homes was intensified by the State to assure the public that residents were not being neglected or endangered. In a trial, conclusions of State investigators are not admissible in evidence; but jurors in the future should be reminded how closely nursing homes were watched. The Health Department and State Attorney General, not plaintiff lawyers, had the best view of how dedicated nursing home workers cared for residents during extraordinary times.