New York had one of the highest nursing home death rates in the United States in the early days of the coronavirus pandemic. The daily infection rates in the Empire State are way down but the damage has been done. Families watched as hundreds of their loved ones died horrific deaths.
In April, the New York Times called New York nursing homes “death pits.” We fought with the state to get them to name names. Finally, on April 17th, the state released the names of facilities reporting COVID-19 deaths. Just five weeks into the pandemic and several homes had dozens of deaths.
Included on that April 17th list:
- Cobble Hill Health Center, Inc Brooklyn - 55 deaths
- Parker Jewish Institute for Health Care & Rehab Queens - 49 deaths
- Kings Harbor Multicare Center Bronx – 45 deaths
- Franklin Center for Rehabilitation and Nursing Queens - 45 deaths
- Carmel Richmond Healthcare and Rehabilitation Center Richmond – 45 deaths
- Holliswood Center for Rehabilitation and Healthcare Queens - 42 deaths
See our New York nursing home “death pit” post for a full listing as of April 17th.
There has been a lot of finger pointing going on in New York but we lay most on the blame at the feet of Gov. Andrew Cuomo and nursing home administrators. The Governor gets special mention for his boneheaded policy directives of transferring COVID-19 patients into nursing homes that were virus free. It’s like placing an open gasoline can near a burning candle and wondering why there is an explosion.
Making the problem even worse was Cuomo’s executive order shielding healthcare workers from immunity from malpractice and most other wrongdoing. The order is retroactive to March 7th. Under the order, there is now immunity from civil liability for “any injury or death alleged to have been sustained directly as a result of an action or omission” by a physician, physician assistant, specialist assistant, nurse practitioner, and/or a registered or licensed professional nurse.
The New York Legislature enacted an even broader immunity called the Emergency Disaster Treatment Protection Act. That law shields both healthcare facilities and professionals from most forms of civil and criminal liability. Like the executive order, it retroactively extends from March 7, 2020 until the emergency declaration expires.
Since the executive order and legislation, we have stopped considering nursing home neglect cases in New York. The burden of proof became too much.
While the broad immunities are great for nursing homes, they are horrible for residents and their loved ones. There is virtually no incentive to provide good care for patients.
Lest you think these immunities were only meant to protect nursing homes from wrongful death suits where the death occurred because of COVID-19, you are wrong. These new laws gave a free pass to just about any negligent act in a nursing home.
New York Legislature Responds to Public Pressure
Some 20 states have enacted immunity legislation. And there has been a big public backlash. The immunities were simply too broad. It is one thing to say a nursing home isn’t responsible for a cOVID-19 death if they couldn’t get ventilators or couldn’t get PPE. In most instances, that was never the problem. And why give a facility for all negligent acts?
As of August 4th, the New York Legislature trimmed the broad immunities enjoyed by nursing homes and hospitals since March 7th. Although we can’t do anything for loved ones who died during those terrible few weeks in March and April, the law has been at least partially fixed.
The new law now reads as follows:
Section 1. Subdivision 5 of section 3081 of the public health law is amended to read as follows:
The term "health care services" means services provided by a health care facility or a health care professional, regardless of the location where those services are provided, that relate to:
(a) the diagnosis, prevention, or treatment of COVID-19; or
(b) the assessment or care of an individual with as it relates to COVID-19, when such individual has a confirmed or suspected case of COVID-19; or
(c) the care of any other individual who presents at a health care facility or to a health care professional during the period of the COVID-19 emergency declaration.
Subdivision 1 of section 3082 of the public health law, is amended to read as follows:
- Notwithstanding any law to the contrary, except as provided in subdivision two of this section, any health care facility or health care professional shall have immunity from any liability, civil or criminal, for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services, if:
(a) the health care facility or health care professional is arranging for or providing health care services in accordance with applicable law, or where appropriate pursuant to a COVID-19 emergency rule. or otherwise in accordance with applicable law;
We realize it is hard to read statutory language so let’s break it down in simple to understand terms.
Legislators modified the immunity legislation to only protect healthcare workers and facilities that are treating or diagnosing COVID-19 patients. There is no immunity for negligently failing to prevent the spread of the virus and no immunity for claims not related to the virus. This means residents and their families can now once again pursue claims for bedsores, falls, etc. and for allowing COVID-19 to spread like wildfire through facilities.
The sponsor of the bill, Assemblyman Ron Kim told reporters, "We can now hold facilities responsible for failing to prevent the spread of COVID and failing to arrange proper care for COVID."
We have always been supportive of frontline healthcare workers who have been working for days without a break or who don’t have enough equipment. Making a tough decision because three patients need a ventilator and a hospital only has one available is a far cry from not providing masks to sick patients and nursing home staff.
The Mahany Law Team – Nursing Home Neglect Lawyers
Our team and national network of nursing home neglect lawyers are actively investigating nursing home coronavirus deaths. As of this update, laws or executive orders giving nursing homes immunity have been issued in 21 states. As noted in this article, some are limited to COVID-19 cases while others give a free pass to all types of negligent and criminal behavior.
Our focus is protecting our families and learning all that we can about this evolving healthcare crisis. Our prayers are with those in nursing homes, their families and the brave women and men who go to work every day in our skilled nursing facilities. Many of them are overworked and lack the test kits and protective gear they require.
For more information, visit our nursing home coronavirus information page. Ready to see if you have a case? Contact us online, by email [hidden email] or by phone 833-201-1555.
(Coronavirus nursing home cases accepted nationwide - we have lawyers throughout the United States. And yes, we are once again considering New York cases! Consultations are without obligation or fee. Cases accepted on a contingency fee basis meaning there are no legal fees or costs unless we recover money on your behalf. Some states have special rules for medical malpractice or nursing home cases. We follow the laws in every jurisdiction where we accept a case.)