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Hurwitz & Fine's
Medical & Nursing Home Liability Pointers


September 22, 2021
A Message from Kara M. Eyre
 
I hope to see you at this week’s DRI 2021 Senior Living and Long-Term Care Litigation Seminar in fabulous Las Vegas, NV.  It is always a great event, attendance looks strong, and it will be so nice to meet and network with other leaders in our industry.  Please feel free to send me a message if you will be attendance and want to say hello.  There are so many timely and relevant topics being presented that we will be reporting on next month, including: Juror Perspectives in the Post-COVID Era, Defending Senior Living Investor Relationships, Important Regulatory Developments, and of course, COVID-19 Legal Updates. 
 
We have a lot of exciting firm news to share this month:
  • Hurwitz & Fine welcomed five new associates pending admission to the firm’s General Litigation and Insurance Coverage teams. This is the largest hiring class we have ever had in the firm’s 44-year history!
  • We are proud to announce that Hurwitz & Fine is participating in the Midsize Mansfield Rule Certification program. This national diversity certification is an 18-month rigorous process designed to increase the representation of diverse lawyers in leadership by broadening the pool of women, LGBTQ+ lawyers, lawyers with disabilities, and racial/ethnic minority lawyers who are considered for entry-level and lateral attorney job openings, leadership opportunities, equity partner promotions, and opportunities to connect with clients. This certification is another positive step we are taking as a firm toward achieving our goals of creating and maintaining a diverse team of attorneys to partner with our clients.
  • Hurwitz & Fine was also recently honored as a finalist in Buffalo Business First’s 2021 Healthiest Employers.
  • I would also like to congratulate those that appeared in the 2021 Upstate New York Super Lawyers list. A total of 28 Hurwitz & Fine attorneys made the list this year, including the members of this team, Chris Potenza, Pat Curran, Stephanie McCance, and yours truly.
COVID-19 continues to dominate our lives and has placed tremendous strain on the healthcare industry, leading to widespread staffing shortages and continued crisis management. 
 
In what must be labeled a highly controversial decision, U.S. District Court Judge David Hurd issued a temporary restraining order against Gov. Kathy Hochul and New York State from enforcing the COVID-19 vaccine mandate for all healthcare workers set to go in effect on September 27, 2021. 
 
We are continuing to follow and monitor cases challenging to the scope and validity of the numerous Executive Orders passed during the pandemic giving immunity to nursing homes and medical facilities.  This month we report on an Orange County trial court decision which denied a plaintiff’s attempt to skirt the immunity provision of Public Health Law 3082(2) by alleging gross negligence and reckless misconduct where a nursing home resident’s injuries were caused by staff shortages amid the COVID-19 pandemic.
 
An Erie County trial court declared that “Ruthie’s Law” (which required that nursing homes notify the families of its residents quickly after a reportable event), while well intentioned, is nonetheless unconstitutional. 
 
In other decisions of note this month, the Second Department showed great deference to our jury system, upholding both a defense verdict in a medical malpractice trial and a plaintiff’s award in a nursing home death trial.
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
Northern District of New York Judge Issues Temporary Ban on Vaccine Mandate
 
U.S. District Court Judge David Hurd issued a temporary restraining order against Gov. Kathy Hochul and New York State from enforcing the COVID-19 vaccine mandate for all healthcare workers set to go in effect on September 27th.  The lawsuit, pursued by 17 unnamed healthcare workers, is being fueled by the conservative Thomas Moore Society, on the grounds that the vaccine mandate fails to allow for an exemption to the vaccine mandate on religious grounds.
 
Gov. Hochul has stated that the vaccine mandate will remain in effect despite the recent order, but, at least for now, enforcement of the requirement against healthcare workers who claim an opposition to the vaccine based upon religious beliefs will be halted.  Judge Hurd’s ruling was issued 2 days after a federal judge on Long Island declined to issue a similar restraining order. 
 
Judge Hurd’s decision has faced criticism from medical industry leaders, who note that courts have upheld vaccine mandates for over 100 years as a means to protect public health.  Conservative pundits, on the other hand, applauded Judge Hurd’s decision as a victory for personal liberty and religious freedom.   


State Supreme Court Strikes Down Mandatory Reporting Law as Unconstitutional
 
Ruthie’s Law, originally enacted in 2017 in Erie County to “ensure nursing homes notify the families of its residents quickly after a reportable event and to increase transparency and accountability via semi-annual reporting,” was declared unconstitutional in a ruling issued by New York Supreme Court Justice Donna Siwek.  The law was originally inspired by a nursing home resident that died after being beaten by another resident and the family was not immediately notified.  A “Reportable Event” was defined as “any altercation between patients and or staff of a Nursing Home that results in an injury to one or more patients, or any incident in which a patient is injured so severely that an emergency call to 911 and/or treatment outside the Nursing Home is required, or the death of a patient is found to have been connected, even in part, to a negligent act or omission on the part of a Nursing Home.”
 
“Despite whatever good intentions the Erie County Legislature and county executive may have had regarding nursing home patient care when Ruthie’s Law was enacted … plaintiffs are correct in that Ruthie’s Law is unlawful, unconstitutional and unenforceable,” Siwek wrote. “Therefore, plaintiffs are entitled to an order and judgment declaring Ruthie’s Law unlawful, unconstitutional and unenforceable and defendants are enjoined from enforcement.”
 
This ruling is an endpoint of a lengthy battle waged by the New York State Health Facilities Association, who argued that the law is redundant as there are already strict reporting requirements for facilities regarding abuse, injuries, and neglect. 

 
COVID-Related Staffing Shortages in Healthcare Widespread; Hospitals Increase Efforts to Recruit & Retain Medical Workforce
 
Staffing problems continue for hospitals amidst the global COVID-19 pandemic.  Even in New York, with vaccination rates above the national average, Gov. Kathy Hochul recently warned that a staffing crisis in healthcare could be on the horizon if more healthcare workers do not get vaccinated.  Currently, 80% of the state’s hospital workers had been vaccinated, according to state data. For skilled nursing facilities and adult care facilities, the statewide vaccination rates were 76% and 80% respectively. 
 
This staffing shortage may only worsen as New York’s vaccine mandate for healthcare workers is set to take effect on September 27th.  While the mandate remains in effect, the State’s ability to enforce it against healthcare workers with a religious objection to the vaccine has been significantly curtailed by a recent Northern District Court decision.  Some hospitals are already reporting that staff members have advised that they intend to resign rather than complying with the vaccine mandate. 
 
In the meantime, hospitals are ramping up recruitment and hiring initiatives.  While much of the focus in the beginning of the pandemic was on mitigating equipment shortages, the focus has now shifted to an increasing labor shortage.  Hospitals are attempting more aggressive recruitment and retention strategies, including increased benefits, higher pay, and initiatives focused on healthcare worker well-being.  Such tactics are among a wider arsenal of strategies hospitals are utilizing to ensure patient care is delivered at the highest possible level, despite being under significant strain.  


Fears of Rationed Care Increasing

The U.S. healthcare system remains under strain due to the COVID-19 pandemic, with infections related to the highly transmissible Delta variant on the rise.  In recent weeks, over ten states have reached their highest rates of hospital admissions since the beginning of the pandemic, causing some to consider enacting “crisis standards of care” – a plan for rationing care during catastrophic events.  This sort of rationing of care involves divvying up medical resources in a way that is as equitable as possible in a crisis. 
 
The application of such crisis standards of care varies depending on the jurisdiction and institution, however, the general principle is that medical institutions are afforded some flexibility when prioritizing patients and provides legal protections for doctors.  In some situations, for example, a stable patient may be discharged from the hospital more sooner than they otherwise would.  Such measures were implemented in Arizona earlier in the pandemic, and many industry leaders are reporting that many hospitals are currently operating “on the edge” of enacting such standards now. 
 
Even if such rationed care standards are not required, and hospitals avoid this worst-case scenario, doctors and nurses in hard-hit regions report that the sheer stress on hospitals and staff is affecting patient care.  Stay tuned in future newsletters for updates regarding compliance with the standard of care when facing staffing shortages as this important issue continues to develop and evolve.  
Analysis of Recent Court Decisions
September 13, 2021                Crampton v. Garnet Health
Supreme Court, County of Orange

No gross negligence or reckless misconduct found where nursing home resident’s injuries were caused by staff shortages amid the COVID-19 pandemic.
 
Plaintiff alleged violations of New York’s Public Health Law 2801-d when she sustained injuries including pressure ulcers and fungal dermatitis and was allegedly sexually assaulted by an employee.
 
Defendant moved for dismissal of all claims except as they relate to the sexual assault, asserting that those claims were barred by Public Health Law 3082. This statute, known as the “Emergency or Disaster Treatment Protection Act,” was enacted at the height of the pandemic to grant immunity from any civil or criminal liability sustained as a result of an act or omission in the course of arranging for or providing healthcare services during a time when an emergency or disaster has been declared- with exceptions for acts or omissions constituting gross negligence, reckless misconduct, or intentional infliction of harm.  Plaintiff’s alleged injuries occurred during the height of the COVID-19 pandemic, and defendant submitted an Affidavit from its Director of Nursing who testified to the extreme staff-shortage across New York during this time and its impact on operations.
 
Putting aside the allegation of sexual assault, the Trial Court found that plaintiff did not allege willful or intentional criminal misconduct or intentional infliction of harm; and, while plaintiff did make conclusory allegations of reckless misconduct, their Complaint was founded in allegations of ordinary negligence. Per Public Health Law 3082(2), acts or omissions resulting from “a resource or staffing shortage” may not be considered to be gross negligence or reckless misconduct. Plaintiff’s bald assertions consisted of bare legal conclusions with no factual specificity, and they were held insufficient to sustain the Complaint in the face of defendant’s motion for dismissal, which was granted.
 
September 1, 2021                  Liguori v. Yerger
Appellate Court, Second Department
Defense verdict not set aside where defendant departed from hospital policy as valid line of reasoning and permissible inferences existed in favor of defendants.

 
During a jury trial for medical malpractice, plaintiff alleged defendant, a radiology technician, deviated from the accepted standard of care when he administered CT contrast media by IV at the flow rate of 1.3 ccs per second which was greater than the hospital policy of using a flow of 1.0 ccs per second. Plaintiff claimed this caused a spill of the contrast media from the vein in her hand into the surrounding tissue, which in turn cause her to suffer various complications including compartment syndrome that required surgery.
 
The jury found in favor of defendants, and plaintiff subsequently moved to set aside that verdict and for judgment as a matter of law. The Second Department found that there was a valid line of reasoning and permissible inferences which could lead rational people to conclude that the defendants did not depart from accepted medical practice.
 
September 1, 2021                  Wasserberg v. Menorah Center for Rehabilitation and Nursing Care
Appellate Court, Second Department
$300,000 jury verdict not set aside against nursing home whose staff failed to check for airway obstruction of a choking resident.

 
Plaintiff commenced this action after decedent choked on a piece of meat, went into cardiac arrest, lapsed into a comatose state and died several weeks later. A jury found in favor of the plaintiff and awarded $300,000, finding that the members of defendant’s staff who performed CPR on the decedent but failed to check his airway for obstruction was a departure from accepted standards of medical care, and that this departure was a substantial factor in causing decedent’s injuries.
 
Defendant then moved to set aside the jury verdict and for summary judgment. The Second Department denied defendants’ motions, finding that there was a valid line of reasoning and permissible inferences in plaintiff’s favor before the jury, and the award did not deviate materially from a reasonable compensation.
 
September 16, 2021                Rattray v. New York Presbyterian
Supreme Court, County of New York
Summary judgment granted where plaintiff’s expert failed to explain how alleged deviations from the standard of care proximately caused injury to a patient discharged from the emergency room.


Plaintiff, a fifteen-year-old minor, alleged medical malpractice when she presented to the emergency room with an ankle fracture. Her injury was X-rayed, splinted and wrapped, and she was referred to an orthopedist surgeon. Plaintiff’s alleged malpractice arises from her unfortunate delay in obtaining an orthopedic surgeon to perform the necessary surgery as they did not take her medical insurance.
 
On summary judgment, the Trial Court held that plaintiff’s expert failed to rebut defendant’s prima facie showing, as although he opined that defendant should have performed a CT scan or MRI, should have consulted with another physician and should have “closed the loop” by contacting a specialist for follow-up, he had not explained how those alleged deviations proximately caused plaintiff’s injury. Moreover, since surgery had to be delayed initially due to swelling, defendant extinguished their duty when plaintiff was discharged from their emergency room as continuity of care does not exist for an emergency room physician once a patient is released.
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. 
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