Lawsuit Filed in NY against Nursing Home for Covid-19 Deaths as the Senate Seeks to Create Immunity for the Worst Nursing Homes

On July 18, 2020, the New York Post reported one of the first Covid-19 lawsuits filed against a skilled nursing facility in Queens, N.Y.  The lawsuit, filed by Janice Esposito for the death of her husband,  alleges that after the patient showed symptoms of Covid, the doctor did not exam him until 5 days later.  By that time, he was so sick, he had to be immediately transported to the hospital, where he died within a week. He last words before he was put on a ventilator, were “I want to live.”  The nursing home where Mr. Esposito was staying had 82 fatalities.

Like Maryland and Virginia, New York has a statute that shields healthcare providers from Covid-19 lawsuits, unless they experience gross negligence.  Another lawsuit was filed by Rosa Shapnik, age 85, against the Hebrew Home in Riverdale.  “This lawsuit alleges gross negligence in an effort to get around the immunity restrictions,” explains attorney Jeffrey J. Downey.  The Shapnik lawsuit alleges that the family begged the nursing facility to take Ms. Shapnik to the hospital, but they never did.

The Senate Majority leader Mitch McConnel recently announced that any new Covid-19 relief bill must have a provision to provide immunities to facilities who may be sued over Covid-19 deaths.  “We are not going to let health care heroes emerge from this crisis facing a tidal waive of medical malpractice lawsuits so that trial lawyers can line their pockets,” McConnel said in the Senate. Not surprising, since the trial attorneys are contributing heavily to Mitch’s opponent, Amy McGrath, as should anyone who wants to fix the current dysfunctional senate.

It should be remembered that the current republican administration weakened regulatory requirements for infection control for skilled care facilities shortly before the Pandemic started, explains Downey.  Our system of justice requires that the Plaintiff  prove that a healthcare provider was negligent before liability can attach.  That will not be easy to do for doctors and other healthcare providers who were on the front lines, doing the best they could.  But nursing homes who dropped the ball and allowed a majority of their residents to become infected, while not following proper isolation protocols or regularly testing their staff, should face liability.  The federal government has done an abysmal job managing this crisis and is now seeking to prevent the public from reviewing CDC data on infection rates.  It’s like we are   living in an authoritarian regime, who wants to hide data and reduce testing so their numbers look good. This administration should not be allowed to pass federal  immunity protections, which are analogous to the immunity the police receive when they injure or shoot a suspect.

Even before this pandemic, nursing homes and hospitals were required to put in place practices to limit the infectious spread of viruses, which is nothing new to the industry.  Under federal regulations which set minimum standards of care for Long Term Care facilities, they “must establish and maintain an infection control program designed to provide a safe, sanitary and comfortable environment and to help prevent the development and transmission of disease and infection.”  42 C.F.R. §65.  The provider must establish an infection control program which investigates, controls and prevents infections in the facility.  Id.  Such a program may include isolation of residents.  “The facility must prohibit an employee with communicable disease or infected skin lesions from direct contact with residents or their food, if direct contact will transmit the disease.”  Id (emphasis added).

Both Virginia and Maryland nursing homes have seen some very high Covid-19 infection rates.  In Virginia, Annandale Healthcare center had 156 cases and 51 deaths, as reported by the Virginia Department of Health.  The CDC is also providing data on nursing home infections in skilled care facilities. In Manassas, Birmingham Green had reported 20 deaths from Covid 19, with 41 confirmed cases.  Leewood Healthcare center in Annandale has reported 17 deaths, although the facility reported only nine total cases among patients. The Virginian, a Fairfax nursing facility, had reported 45 Covid cases and 13 deaths.  In Richmond the Westport Rehabilitation Center, 7300 Forest ave, has reported 39 total cases and 6 deaths. The Envoy of Woodbridge, 14906 Jefferson Davis Highway has reported 138 total cases and 6 deaths. Cherrydale Health and Rehabilitation Center, 3710 Lee Highway, Arlington, has reported 107 total cases and 8 total deaths. Heritage Hall Leesburg, 122 Morven Park Road, N.W, has reported 112 cases and 15 deaths.

In Maryland the government had provided data on facilities and infection relates broken down by geographic area.  The highest infection rates are in Baltimore and Montgomery County.  There have been nearly 200 cases reported at FutureCare in Baltimore. There are more than 90 cases amount residents and their staff at Pleasant View Nursing Home in Mounty Airy, Carroll County.  The Post Acute Care Center, 5009 Frankford Ave, Baltimore, MD, has reported 108 total cases and 9 deaths. The Wilson Healthcare Asbury Methodist Village in Gaithersburg has reported 113 total cases and 21 total deaths.

“As Department of Health investigations continue and as additional information becomes known about the troubled facilities, we will have a clearer picture of potential legal liability against these facilities,” explains Downey.  Both Maryland and Virginia have enacted immunity statutes that provide some qualified protections for nursing facilities that will have to be overcome, if wrongful death cases are to be pursued against the worst offenders.

For additional information, or a free consultation, contact the Law Office of Jeffrey J. Downey.  Representing clients in Virginia, Maryland, N.Y. and the District of Columbia.

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