From mid-March to present, it’s estimated that over 6,400 nursing home patients officially died of COVID-related causes in New York State nursing homes, and untold thousands more are believed to have been affected. The pain, trauma and loss of human life that happened in such a short period of time is overwhelming. And although the initial spread of the pandemic took many institutions and people by surprise, many survivors and loved ones of nursing home COVID deaths are looking for answers. Were the deaths avoidable, and did some parties make decisions that were negligent in their duty to care for the nursing home residents?
If you’ve suffered an injury or loss due to the negligence of another party (including at a nursing home), do not hesitate to contact Mainetti & Mainetti, P.C. for a free consultation. We have offices in both Kingston and Poughkeepsie and have decades of experience pushing back against insurance companies to help our clients receive the maximum possible compensation for their losses. Give us a call at 845-600-0000 to schedule a free consultation.
What is a nursing home personal injury lawsuit in New York State?
Under normal circumstances, a nursing home resident or their family would sue in some of the following situations:
- Bed sores resulting from failure of nursing staff to properly turn over patients
- Negligence and carelessness resulting in loss of life
- Physical and sexual abuse
- Unsupervised wandering/patient elopement
- Medication overdose or error
- Malnutrition
- Slip and falls
The necessary elements for a personal injury lawsuit for nursing home patient typically are:
- Duty: the nursing home has a duty to care for the resident or patient
- Breach of duty: the actions of a staff member or the policies of the nursing home that led to a breach of duty of care
- Proof of causation: the proof that the breach of duty occurred and led to an injury
- Injury: the proof that an injury occurred
What happened with COVID-19 for nursing home residents?
In late March, as the impact of COVID-19 on nursing homes was starting to be known, New York State Governor Andrew Cuomo inserted language into the New York State annual budget that shielded nursing homes from lawsuits “over their failure to protect residents from death or sickness caused by the coronavirus” related to shortages in staffing or protective equipment. Governor Cuomo also wrote an executive order on March 23 that shielded workers at the facilities from lawsuits related to their handling of COVID-19.
These legal measures coincided with a state order that required nursing homes to accept COVID-19 patients from hospitals, and another measure for less-stringent record-keeping requirements.
“They always knew during this time they couldn’t be held liable or sued by the families. It was a perfect storm of a lack of accountability.”
The New York Times later reported that several state lawmakers claimed to be blindsided by this provision and are fighting for its repeal, and that New York State is one of at least 15 states that have shielded nursing homes and other care facilities from lawsuits.
“They always knew during this time they couldn’t be held liable or sued by the families,” says State Assemblymember Ron Kim. “It was a perfect storm of a lack of accountability.”
Months later, we are all painfully aware of the link between COVID-19 transmission and standard nursing home practices; 42% of all COVID-19 deaths in the country are linked to nursing homes, and 9% of total cases. In New York State, about 20% of our COVID-19 deaths have been linked to nursing homes.
Can nursing home residents and their families sue for COVID-19 related damages?
The immunity that was granted by the state does not cover gross negligence or willful or criminal misconduct by nursing homes. However, a July report by the New York State Department of Health said that nursing home COVID-19 deaths were primarily caused by infected workers, and were not to be blamed on the facilities’ policies or quality of care.
According to analysis by Propublica:
“In its report, the administration minimized the likelihood that COVID-19 patients were still contagious, saying that transfers from hospitals typically happened well after the patients became sick. The median number of days before the transfer of the more than 6,000 patients was nine. The state’s report does not account for the fact that its own analysis shows half of the more than 6,000 transfers arrived at nursing homes fewer than nine days after falling ill.”
It will be a hard fight, but there are three main avenues for obtaining justice and compensation for nursing home COVID-19 victims and their families:
- New York State law could possibly be reversed at some point, making nursing homes liable for staffing and equipment shortages that led to COVID-19 infection
- COVID-19 victims and their families could sue a nursing provider if they can meet the burden of proof that negligence or willful or criminal misconduct occurred
- COVID-19 victims and their families could seek compensation from the governmental bodies that set policy during the early days of the COVID-19 pandemic
We’re here to help you weigh your options. If you’ve suffered an injury or loss due to the negligence of another party (including at a nursing home), do not hesitate to contact Mainetti & Mainetti, P.C. for a free consultation. We have offices in both Kingston and Poughkeepsie and have decades of experience pushing back against insurance companies to help our clients receive the maximum possible compensation for their losses. Give us a call at 845-600-0000 to schedule a free consultation.