Who is to Blame for Nursing Home Deaths in New York?

August 5, 2020

Communities throughout New York are working hard to stop the spread of the novel coronavirus. In late June 2020, Governor Andrew Cuomo declared a travel advisory in place for people arriving to the tri-state area from hot-spot states with high infection rates. Travelers from states, including Florida, Texas, and the Carolinas, are required to quarantine for 14 days or face steep fines.

Yet, while the travel advisory may stem the influx of new COVID-19 cases, New York is facing another serious threat to some of its most vulnerable residents, senior citizens. As of July 23, 2020, more than 6,000 nursing home residents have died from coronavirus complications, and thousands more are battling the virus in long-term facilities.

This leaves older New Yorkers battling the virus,, and the families of those who have passed asking questions about the possibility of legal action against nursing homes who failed to protect their residents.

How are Families Dealing with COVID-19 Nursing Home Deaths?

The pain of losing a loved one is made even more tragic when the survivors are deprived of the chance to say goodbye. Many long-term facility residents who contract coronavirus and do not survive are unable to have traditional last rites, funerals, burials. Due to the risk of transmission, families miss out on the opportunity to properly honor their loved ones and commiserate with family and friends in a way that helps with the grieving process.

Nursing Home Staff and the Cause of Spread

On July 6, 2020, the New York State Department of Health (NYSDOH) published a report on COVID-19 in nursing homes. According to their in-depth analysis, when the virus hit local communities throughout the state, asymptomatic carriers spread it through contact with others in nursing homes, hospitals, and other locations where people congregate.

While this seems like an obvious connection, the report goes into greater depth, specifically linking nursing home staff workers who became infected with COVID-19 directly to nursing home fatalities. The average timeframe of 18 to 25 days from infection to death correlates with the peak numbers of nursing home workers reporting symptoms of the virus and the peak numbers of fatalities among residents.

For this report, the NYSDOH also studied the timelines of patients diagnosed with COVID-19 who were transported to nursing homes directly from hospitals. They determined that in most cases, patients were no longer contagious by the time they transitioned to long-term care facilities, ruling out this scenario as the culprit for the spread of COVID-19 in nursing homes.

What are CDC Recommendations?

Residents are highly susceptible to respiratory pathogens, including COVID-19. To reduce that risk and better protect resident populations, the Centers for Disease Control and Prevention (CDC) offer numerous recommendations.

According to these guidelines, facilities should:

  • Have at least one employee on staff with infection prevention and control (IPC) training to oversee COVID-19 safety protocols.
  • Refer to the Nursing Home Reopening Guidance for State and Local Officials recently issued by the Centers for Medicare and Medicaid Services (CMS).
  • Report data regarding on-site cases, staffing, personal protective equipment (PPE), medical equipment, and resident capacity to the National Healthcare Safety Network’s Long-term Care Facility COVID-19 Module every week.
  • Inform residents, visitors, and staff about best practices to prevent the virus and steps the facility is taking to reduce exposure to COVID-19.
  • Supply and utilize PPE, including cloth face coverings, except for residents who have difficulty breathing or other respiratory issues.
  • Implement restrictions for visitors, reminding them not to visit if they feel ill or have been exposed to someone with symptoms.
  • Have a system for testing staff and residents for COVID-19, including procedures for residents who cannot be tested for some reason.
  • Evolve employment policies to allow for routine staff screenings for symptoms and to implement sick-leave policies that are non-punitive for employees who contract the virus.
  • Requires social distancing whenever possible, frequent hand-washing, and other preventative measures to reduce transmission of the virus.

What Happens if a Nursing Home Resident Has COVID-19?

The CDC-recommended safety measures can help prevent the spread of COVID-19 to health-compromised adults. However, what happens when a resident does get sick?

Nursing homes need to be prepared to provide high-quality care for COVID-19 patients while containing the virus and protecting staff and residents. To do that, the CDC advises that nursing homes provide:

  • Dedicated spaces for COVID-19 patient care.
  • A plan for managing residents who may have been in contact with sick patients.
  • A system for evaluating residents displaying COVID-19 symptoms.
  • Commitment to notify the Health Department of new cases.

Can I Sue for a Nursing Home Death or Illness?

The death toll for long-term facility residents exceeds those in many other states, leaving many New Yorkers to place blame on Cuomo’s response to the pandemic. In March 2020, his administration issued a directive effectively ordering nursing homes to accept patients with COVID-19 from hospitals, risking the lives of other residents. The mandate also prohibited nursing homes from requiring COVID-19 testing for incoming patients.

The political contention has spread to a debate over Senate Bill S8835 that was recently passed and delivered to Governor Cuomo. Initially, the bill was created to remove a provision included in the state budget that affords nursing homes and other long-care facilities immunity from being sued for not protecting residents from coronavirus.

After considerable pushback, the immunity in this legislation evolved into something much weaker, giving residents impacted by COVID-19 and their families more legal leeway to sue facilities where the virus has spread.

Under the bill, immunity from lawsuits would be adjusted to permit legal action if it is shown that a health care worker of a facility failed to protect a patient from contracting the virus.

Critics of the COVID-19 Lawsuit Bill

While it may seem logical to give sick patients and their families the right to sue if their COVID-19 diagnosis could have been prevented by better safety protocols, the bill still has some critics. Greater New York Hospital Association outlined its concerns, saying the bill will undercut the industry’s commitment to caring for New Yorkers during the COVID-19 pandemic.

Other industry groups caution that this legislation does not consider the future complications resulting from a resurgence of the virus, including a possible shortage in health care employee manpower and PPE. Many also feel the bill will encourage a wave of retroactive lawsuits against health care facilities. Economic strain from litigation may trickle over into shortcuts in patient care.

The agency also effectively ruled out the possibility of visitors bringing COVID-19 into nursing homes, as visitation was completely suspended on March 13, 2020.

How Can a Lawyer Help?

Most people trust nursing homes to provide exceptional care for family members; however, what happens when administration and employees do not take precautions to protect residents’ health and well-being? This question has never been more relevant than now, as everyone faces the ongoing global health crisis. If one suspects nursing home abuse and neglect, one can hold the caregivers responsible. One can contact an experienced elder law attorney to discuss legal options and to help one pursue justice on the behalf of a loved one.

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Our Long Island elder law lawyers at Korsinsky & Klein, LLP advocate for elders and their families that are facing a wide range of legal matters. From smart estate planning to elderly neglect and abuse, having an experienced and compassionate attorney by your side can make the difference and ensure a positive outcome. During these unprecedented times, we believe it is essential to be flexible when serving our clients. Your health and safety are always our top priority. Call us at 212-495-8133 or contact us online for an initial consultation. Located in Brooklyn and Manhattan, New York, and Lakewood, New Jersey, we serve clients throughout New York and New Jersey.