Nursing Home Legal Alert - 8/05/2020

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

The Jury Has Returned
As courts begin to re-open, are you curious as to how COVID-19 will affect jury selection and deliberations? Hurwitz & Fine’s V. Christopher Potenza collaborated with renowned jury consultant Dr. David Parrott and other trial attorneys from across the country for the feature article of the August 2020 edition of CLM Magazine to provide insight on how the pandemic will impact the make-up and mindset of potential jurors.
 
This article provides in depth analysis of our changing juror demographics, and how jurors' beliefs and attitudes may have been influenced by the pandemic. Personal experiences with COVID-19 and New York’s PAUSE could have an anecdotal impact on what actions society now considers to be morally correct, or “common sense,” and jurors may place more or less trust in expert evidence as a result of the conflicting views that have played out among scientists and policymakers throughout this time.
 
Practically, attorneys may have to consider alternative methods of delivering information to jurors at trial, as heightened anxiety from forced interactions with multiple strangers may affect a juror’s ability to focus on complex issues for long periods of time. Additionally, younger jurors will be more accustomed to learning through multimedia formats. Attorneys should anticipate more frequent breaks throughout the day, and drawn-out jury deliberations, and this article makes some excellent recommendations for litigation attorneys preparing to tackle these challenges for post-pandemic trials in the coming months and years ahead.
 

Governor Cuomo Signs Legislation Rolling Back Nursing Home Immunity

Last week we reported to you on the rollback legislation passed by New York lawmakers on July 23, 2020, which amends an earlier bill affording legal immunity to nursing homes and hospital facilities operating amid the COVID-19 pandemic. The new law now extends immunity only to medical professionals who have diagnosed, assessed or treated COVID-19 patients. The legislation also removes the “prevention” of the coronavirus from the definition of health care services.
 
The bill was signed into effect late Monday, August 3, 2020, and applies prospectively to cases accruing from that date.
 

Government to Send Testing Kits to All Nursing Homes
The federal government has announced that it will send point-of-care testing supplies for COVID-19 to all skilled nursing facilities in the country. The equipment will provide rapid, immediate test results and will provide facilities with the capability to run up to 20 tests per hour, with initial machines being sent to nursing homes ranked by the Centers for Medicare and Medicaid Services as being at risk due to community spread of the virus.
 
Concerns have already been raised that this measure could be yet another in a string of unfulfilled promises made to nursing homes throughout the pandemic, as it was announced that the government will provide only enough test kits to test staff twice and residents once. However, facilities are advised that officials have made arrangements with test kit manufacturers so that nursing homes can order their own tests for far less than what they are currently spending. The government has also clarified that the tests are to be used for ongoing surveillance and monitoring purposes, and not to make definitive diagnoses.
 
The initial round of 2,400 test machines and hundreds of thousands of test kits will be delivered to hot spot facilities by mid-August.
 

Brace for COVID-19 Litigation
In an interview for Times Union regarding nursing home liability protections in New York, Brett Leitner – a trial attorney in New York City – revealed that he has been retained to represent clients in over 150 different statewide coronavirus nursing home death cases.
 
The majority of these cases have not yet been filed, because an administrator must be appointed by a Surrogate court first – a process which ordinarily takes several months in non-pandemic times. Leitner states that his game plan for many of these cases is to prove that the facilities had inadequate infection control procedures in place before March 7 – the date that the immunity provisions were enacted. It will be interesting to see how such an argument plays out, given the myriad of evidence that the strength of such procedures had little effect on the virus spread and the many nursing homes with zero prior deficiencies who were ravaged by it nevertheless.

 

A Note from Stephanie McCance

Though it was anticipated for some time, the rollback of COVID liability protections for hospital and nursing home staff is unwelcome news this week. Facilities must remain vigilant to ensure that the care of non-COVID residents is not impacted by pandemic provisions, and heightened measures must continue to be taken to avoid transmission of the virus in light of this new legislation. Though the expected testing kits will bring more efficiency to the day-to-day practicalities of prohibiting transmission, the ‘prevention’ of the virus now being removed from liability protections means there is simply no room for cutting corners when it comes to infection protocols. With the ‘tsunami’ of COVID litigation apparently biding time in Surrogate courts, it is never too early to begin preparing for trial, and Chris Potenza’s article on dealing with jurors post-pandemic offers critical insight. 

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.