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Hurwitz & Fine's
Medical & Nursing Home Liability Pointers


June 30, 2021
A Message from Kara Eyre

It is said that the only constant in life is change, and the events of this spring and summer are no exception!  I joined the Hurwitz & Fine Medical & Nursing Home Liability team in May, representing both a major life change for me and a change for the group.  I have spent most of my career as a defense attorney representing physicians, hospitals, and medical institutions in complex matters involving medical malpractice and nursing home negligence, and I am looking forward to digging in and getting to work defending our clients.  Thanks to the warm welcome I have received from my new colleagues at Hurwitz & Fine, this change has been an easy (and welcome!) one.   
 
Beyond the hallways at Hurwitz & Fine, change has also been ubiquitous around New York State with the easing of COVID-19 restrictions following the announcement that 70% of all New Yorkers have received at least one vaccination dose.  It has been impossible not to notice the mask-less, smiling faces around New York in various settings, including retail stores, restaurants, offices, gyms, amusement parks and salons.  While these are certainly welcome changes, employers and employees must also navigate new requirements and responsibilities surrounding vaccination.  Hurwitz & Fine partner, Joe Brown, has written extensively on this topic (and more) in Hurwitz & Fine’s COVID-19 Vaccination Updates
 
The changes instituted by Governor Cuomo last year, including tolling of statutory time limitations due to the COVID-19 emergency are being addressed by the Courts in New York.  In Brash v. Richards, the Second Department offered clarity on the difference between a toll and a suspension, the former being a period that is not counted when determining whether a deadline has passed and the latter being defined as a pause that expires once lifted.  The Court interpreted the Emergency Orders as a toll, which will result in longer time periods before statutorily imposed deadlines expire.  Understanding these developments is essential to properly defending our clients in ongoing medical and nursing home malpractice litigation.
 
New York Courts are now experiencing an influx in COVID-19 related lawsuits, presenting a direct challenge to the scope and validity of the numerous Executive Orders passed during the pandemic giving immunity to nursing homes and medical facilities.  Here in Western New York, a lawsuit over an elderly couple’s COVID-19 death appears to be one of the first challenges to the immunity granted by the state to nursing homes and medical facilities.  As addressed below, similar lawsuits are also being initiated across the state, and we will be watching the developments involving these lawsuits closely.
 
In addition to litigation flowing from COVID-19, Courts across New York were active this spring and early summer, releasing several interesting decisions impacting medical and nursing home liability, including a First Department decision vacating a $2.5 million award in a case sounding in medical malpractice and nursing home violations under PHL §2801-d and a Third Department decision holding that a clerical mistake made by a nurse resulting in incorrect dosing sounded in medical malpractice rather than ordinary negligence. 
Your COVID-19 Resource Center: Legal Updates Regarding the Coronavirus
 
Our teams are hard at work keeping you updated on the latest New York State and Federal updates concerning the coronavirus. Our Resource Center compiles all of the information that could affect you and your business during this pandemic.
Latest News & Developments
New York’s COVID-19 Emergency Declaration and Healthcare Immunity Expires
Governor Cuomo announced that New York’s COVID-19 emergency declaration would expire on June 24, 2021, and would not be renewed.
 
The end of the state of emergency means that the immunity protections afforded to health care providers pursuant to Public Health Law 3082 will expire at the end of the day on June 24, 2021, for any act or omission occurring after the date of expiration.
 


COVID-19-Related Lawsuits Filed Against Nursing Homes in New York
New York is experiencing an increase in COVID-19 related lawsuits filed against nursing home facilities, with cases being reported in Long Island, Manhattan and Western New York.
 
These legal actions will provide an important legal test of the controversial immunity provision signed by Governor Cuomo in April 2020 to protect nursing homes, hospitals and other health care facilities during the pandemic. Three months later, the legislature voted to limit that far-ranging protection to apply only when a health care facility or medical professional provided direct care related to COVID-19, or the disease influenced medical treatment. The United States District Court for the Eastern District of New York is set to decide in the coming weeks whether those changes will become retroactive to April 2020.
 
That decision may open the door for additional lawsuits, a move criticized by hospital lobby groups – the Greater New York Hospital Association and the Healthcare Association of New York State – who have filed an amicus brief asking the federal judge to dismiss the lawsuit entirely. We are closely following these cases and will update our readers on the upcoming federal decision.
 
 

New York State Releases New Guidance on Nursing Home Visitation
In March 2021, Governor Cuomo signed a bill into law expanding visitation for family members and loved ones residing in long term care facilities during the pandemic. Newly released guidance from the Department of Health now allows them to move forward with those changes.
 
The new law allows nursing home residents and their families to designate two or more personal caregivers – these caregivers are exempt from any general prohibitions on visitation, such as those put in place since the COVID-19 pandemic began. A caregiver could be a family member, close friend, or legal guardian of the resident - someone they or their lawful representative chooses. This can be for personal caregiving – mental, physical, or social wellbeing – or compassionate caregiving – end of life, or any other psychological distress.
 
Although these two designated individuals are exempt from general prohibitions on visitation, the guidance says a facility still has the right to temporarily suspend personal caregiving visits due to an increase in local infection rates, inadequate staffing capacity, loss of essential services, or if a caregiver poses a threat to the safety and well-being of the resident. Facilities must keep a written record of designated caregivers and visitors.
 
 

Gov. Cuomo Signs Law Establishing Committees to Distribute Staff in Hospitals
On June 19, 2021, Governor Cuomo signed Senate Bill S1168A to establish clinical staffing committees in general hospitals. The staffing committees – which will be jointly comprised of registered nurses, licensed practical nurses, ancillary staff members providing direct patient care, and hospital administrators – will be charged with collaboratively developing clinical staffing plans that include specific guidelines on how many patients are assigned to each nurse and how many ancillary staff are assigned to each unit. The legislation also creates an advisory commission to evaluate the effectiveness of the staffing committees.
 
The first plan must be adopted by the committee and submitted to New York’s Department of Health by July 1, 2022. Hospitals will be required to implement those plans by 1, 2023. Committees are responsible for taking certain factors into account when creating their plans, reviewing them, updating them annually and responding to complaints. Plans must be posted in public areas and on the DOH hospital profile website. DOH can investigate potential violations of the plans that are not resolved by the committee, and issue civil penalties for failing to comply with them.

Cuomo additionally signed into law the safe staffing bill for nursing homes, which passed in May of this year and requires every facility to provide each patient with 3.5 hours of daily care, on average. About a third of that care must come from nurses, with aides providing the rest.
Analysis of Recent Court Decisions
Frederick Smith, etc., v. Northern Manhattan Nursing Home
Appellate Division, First Department
June 15, 2021
The First Department vacates award of $2.5 million for pain and suffering because judge failed to determine whether decedent had any level of consciousness before instructing the jury on the elements of conscious pain and suffering.
 
At trial of this case involving claims of medical malpractice and violations of New York State Public Health Law §2801-d, plaintiff presented evidence that the decedent was found non-responsive due to low blood sugar and was then left unmonitored and was not transferred to the hospital until several hours later, leading to brain injury and death.  The jury awarded the plaintiff $2.5 million for pain and suffering, despite the fact that there had been no finding or instruction to the jury on whether the patient had been conscious during the time period involved.
 
The First Department vacated the $2.5 million award for pain and suffering and directed a new trial on damages for pain and suffering.  In support of this holding, the First Department noted the long-standing rule that a jury should not be allowed to award damages for pain and suffering without first determining that the decedent experienced some level of consciousness following the injury.  Interestingly, the Court found no legal basis for applying this rule to negligence/malpractice claims, but not in the context of a violation of PHL §2801-d, which is a separate and distinct cause of action.  The Court noted that by omitting any discussion of “consciousness” from its jury charge or verdict sheet, the issue was improperly taken away from the jury.
 

Holland v. Cayuga Med. Ctr. at Ithaca
Appellate Division, Third Department
June 17, 2021
Action sounds in medical malpractice, not in ordinary negligence, where a doctor ordered that a certain dosage of medication be administered for 1 minute, but was inadvertently programmed into a machine by a nurse for 11 minutes.
 
The plaintiff had been rushed to the hospital after suffering a stroke, and the physician on duty prescribed 90 milligrams of Alteplase (“tPA”) and directed that it be administered so that 10% of the medication was delivered in the first minute, and the remaining 90% was delivered over the following 60 minutes.  However, rather than program the machine to dispense the initial bolus in 1 minute as prescribed, a nurse programmed 11 minutes.  After approximately three minutes, the mistake was discovered and the machine was recalibrated.  The patient initiated the lawsuit alleging that the misadministration of the tPA resulted in permanent aphasia and comprehension limitations.
 
The Third Department held that the case sounded in medical malpractice only, and not both general negligence and medical malpractice.  “Conduct may be deemed malpractice, rather than negligence, when it constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician” (internal quotations omitted).  The key question is whether the acts or omissions complained of require special medical or scientific skills not possessed by lay persons.  The Court held that the actions of the nurse, calibrating a machine to administer tPA medication, necessarily involved medical skills and therefore was a medical malpractice case, not ordinary negligence.
Hurwitz & Fine's Medical & Nursing Home Defense Team
 
With over 50 years of combined experience in defending doctors, nurses, and medical professionals, as well as hospitals, institutions, and nursing homes, the Hurwitz & Fine Medical & Nursing Home Defense Team is here for you.  

Our defense team has the trial results and experience to vigorously defend our caregivers facing blame in the most trying of circumstances.  Patrick B. Curran has dedicated his 40-year legal career to defending medical professionals and nursing homes from claims of negligence and malpractice.  He has also served as an adjunct faculty member at the University at Buffalo School of Law, and lecturer for the University at Buffalo School of Medicine and School of Nursing, as well as for other health care professional and community groups.  V. Christopher Potenza is a seasoned and trial-tested litigator, having obtained defense verdicts across New York State on complex matters. He has substantial experience defending claims at the federal, state, and appellate levels.  Kara M. Eyre has 10 years’ experience defending physicians, hospitals, and medical institutions in complex matters involving medical malpractice and nursing home negligence through all phases of litigation, including trial and appeal.  Stephanie L. McCance offers her international legal experience with strong research, analysis and advocacy skills, with extensive involvement in complex litigation, including all phases of discovery, depositions, motions, and appeals.

 
As a public service, we are pleased to present this newsletter providing the latest news, developments, and analysis of recent court decisions impacting the medical and long-term care communities.  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 Medical Malpractice & Nursing Home Defense Team
is here to answer your questions:

V. Christopher Potenza, Esq. (vcp@hurwitzfine.com)
Patrick B. Curran, Esq. (pbc@hurwitzfine.com)

Kara M. Eyre, Esq. (kme@hurwitzfine.com
Stephanie L. McCance, Esq. (slm@hurwitzfine.com)
Read Our Additional Newsletters
Coverage Pointers: This twice-monthly electronic newsletter summarizes important insurance law decisions from appellate courts in New York State with the occasional snapshot across borders. Contact Dan Kohane at ddk@hurwitzfine.com  to subscribe.

Employment & Business Litigation Pointers:  Employment & Business Litigation Pointers aims to provide our clients and subscribers with timely information and practical, business-oriented solutions to the latest employment and general business litigation developments.  Contact Joe Brown at jsb@hurwitzfine.com to subscribe.

Labor Law Pointers:  Hurwitz & Fine, P.C.’s Labor Law Pointers offers a monthly review and analysis of every New York State Labor Law and construction accident case decided during the month by the Appellate Courts. Contact Dave Adams at dra@hurwitzfine.com to subscribe.

Premises Pointers This monthly electronic newsletter covers current cases, trends and developments involving premises liability and general litigation. Contact Jody Briandi at jeb@hurwitzfine.com  to subscribe.

Products Liability Pointers:   This monthly
newsletter covers all areas of products liability litigation, including negligence, strict products liability, breach of warranty claims, medical device litigation, toxic and mass torts, regulatory framework and governmental agencies. Contact Chris Potenza at vcp@hurwitzfine.com to subscribe. 
Hurwitz & Fine, P.C.
 
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