Nursing Home Legal Alert - 7/23/2020

An important message from the Hurwitz & Fine COVID-19 Response Team

Lawsuits Filed Despite Nursing Home Immunity
Undaunted by the COVID-19 litigation immunity legislation that has been implemented by numerous states, Plaintiff attorneys are relying on exceptions to the law and potential constitutional challenges to file lawsuits against nursing homes afflicted by the pandemic. Many states’ legislation includes an exception for instances of “gross negligence”, a higher standard that attorneys state is not impossible to overcome in the most egregious cases.
 
Additionally, lawyers are considering lodging constitutional challenges, arguing that families of deceased nursing home residents may have their equal protection rights violated by the immunity laws. Constitutional law expert Robert Peck has stated that such challenges could be viable, though the success of such a challenge is dependent on a number of factors; including the political makeup of the state’s highest court, the language of the law or order, the state’s case law, and whether the immunity was delivered in the form of an Executive Order or statute.
 
We are aware of several lawsuits that have been filed in New York citing the gross negligence standard. In Queens County, the wife of a nursing home resident who showed symptoms of the virus telephoned the facility’s doctor who advised her that he was working from home that week. When he treated the resident five days later, the resident’s condition had progressed such that he was immediately sent to hospital but died within the week.  In Bronx County, the family of a deceased resident states that they repeatedly asked the nursing home to transport the resident to hospital, but the facility refused. Instead they provided the resident with the experimental hydroxychloroquine until she succumbed to the virus. We will continue to closely monitor these and other similar cases in New York to report to you on the developing challenges presented.


Plans Announced to Improve Services for Long-Term Care Residents
The New York State Department of Health and State Office for Aging announced a five-point plan to help long-term care residents and their families:

• Access services through the Office of the State Long Term Care Ombudsman Program;
• Provide additional resources to residents and families appealing involuntary discharges;
• Expand the ombudsman volunteer program;
• Reimagine a multiagency workgroup to enhance services; and
• Provide $1 Million in funding for facilities to purchase tablets, webcams, headphones, and other tech accessories to help residents stay connected with loved ones during the COVID-19 crisis and beyond.

The move follows a critical June audit from New York City Comptroller Scott Stringer’s office that criticized the state and city for chronically underfunding the ombudsman program, which was put under a microscope during the pandemic – especially since all visitors have been banned from facilities due to (recently relaxed) statewide health restrictions.
 
The funding for the tech will be rerouted from the federal Civil Monetary Penalty funds collected by the Department of Health via nursing home inspections. Facilities can submit an application to the Department of Health to receive up to $3,000 for the purchase of communicative equipment.


Resident Nurses Important to Prevent Infection Transmission
Dr. Yue Li, a professor at the University of Rochester Medical School has identified registered nurse staffing as a factor associated with lower COVID-19 death rates in a recent study of Connecticut nursing homes. Registered nurses play a crucial role in assessing patients, monitoring their care, supervising other nursing staff, and identifying and responding to emergencies. Ensuring that there is sufficient staffing of registered nurses, and addressing the high rate of turnover associated with all nursing staff in skilled care facilities is critical in light of Dr. Li’s research, which evidenced that long-term care facilities that provided more hours of care per residents from a registered nurse had lower COVID-19 infection and death rates.
 
 
Over 5,000 Nursing Home Investigations Delayed
The New York State Health Department has a backlog of nearly 5,000 unresolved complaints filed against nursing home facilities during the COVID-19 pandemic. The Health Department has given top priority to investigation complaints of infection control and immediate jeopardy, but other complaints – including at least one regarding a Buffalo-area fatality – have not received the same attention.
 
This is partly due to the U.S. Centers for Medicare and Medicaid Services on March 23, 2020 suspending all other types of inspections to allow states to concentrate on halting the spread of the new coronavirus amid the country’s elderly population. On June 1, the agency issued a memo providing guidance to resume enforcement of other regulations regarding nursing homes once a state has entered Phase 3 of the Nursing Homes Re-opening guidance.
 
 
Hearings Scheduled on New York’s Nursing Home COVID-19 Deaths
The New York State Senate’s investigations committee has agreed to hold hearings on COVID-19 deaths occurring to nursing home residents in the state. The hearings aim to diligently examine what transpired, both to hold “bad actors” accountable, and to learn what did and did not work in the state’s fluctuating pandemic response. Hearings will include testimony from Governor Andrew Cuomo’s office, nursing home management, hospital stakeholders, frontline workers, and patient family members.
 
The hearings, all of which will be conducted remotely by Zoom, are scheduled for the following dates:

• August 3: Upstate Nursing Homes
• August 10: Downstate Nursing Homes

Testimony will be by invitation only, however, members of the public are welcome to submit written testimony or tips to Senator James Skoufis’ investigative team at [email protected].

 

A Note from Pat Curran

This week, the newspaper reported that nearly 5,000 complaints were filed against nursing homes with the Department of Health during the pandemic – an average of thirty-five every day.  The story highlighted one 83-year-old resident with multiple co-morbidities, including diabetes, who died.  Is this a gauge of the pent-up frustration felt by families who have been unable to visit loved ones in person and who assume the worst regarding whether nursing homes have taken good precautions against Covid-19?  Is this an omen of thousands of lawsuits to come? The records created by caregivers now and over the past several months, as well as their recollection of general conditons and practices, will tell the story.

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.