By Frank G. Runyeon

Law360, New York (August 4, 2020, 10:40 PM EDT ) New York passed a new law Monday narrowing nursing homes' future legal immunity — a partial victory for lawmakers who sought to erase the pandemic liability shield amid thousands of COVID-19 deaths in the facilities — as attorneys have quietly begun filing lawsuits.

State lawmakers settled on a revision to the Emergency Or Disaster Treatment Protection Act, known as "30-D," which, as of Gov. Andrew Cuomo's signature Monday, strips away "blanket immunity" for nursing homes and hospitals providing non-COVID-19 treatment, virus prevention or arranging virus care as part of the pared-back legislation, but otherwise largely leaves 30-D intact, bill sponsor Assemblyman Ron Kim told Law360 on Tuesday.

"We can now hold facilities responsible for failing to prevent the spread of COVID and failing to arrange proper care for COVID," Kim said.

In the wake of 6,000 COVID-19 deaths at the facilities, a coalition of lawmakers led by Kim scrambled to entirely repeal 30-D, which was buried deep in an early April budget bill. It loosened record-keeping requirements and largely immunized health care providers from criminal and civil liability as long as they are responding to the COVID-19 emergency in good faith. 

The law that passed this week is a significant retreat from the lawmakers' push to wipe out the immunity provision altogether, which relieved nursing home administrators but has alarmed advocates who feared the state law has hidden deadly neglect.

"Our biggest disappointment here was fighting for some kind of retroactive fixes," Kim said, noting that the budget bill shielded health care facilities from the outbreak of the virus in early March and that the new law only applies to providers' conduct after the height of the crisis.

"We wanted a clean repeal of that entire section," Kim said, noting that he "knew that was going to be an uphill battle."

The modest revision comes a month after a state health report found that neither nursing home neglect nor a controversial policy of placing COVID-19 positive hospital patients in nursing homes was the driver of virus deaths, instead placing the blame on health care workers unknowingly introducing the virus into the facilities.

Still, Kim's allies see the new law as a small but significant victory in unwinding the little-noticed provision in the so-called "big ugly" budget bill, which ran 360 pages long before it passed in Albany's end-of-session frenzy in early April. They also note that legislative leaders have floated the possibility of a compensation fund for virus victims.

"It's a classic example of 'half a loaf is better than none,'" said longtime health committee chair Assemblyman Richard Gottfried, who supported Kim's repeal bill and the latest half-measure. "In public policy, you often move ahead one step at a time and take as much as you can get."

"It is a small victory but it is a victory nonetheless," said Justin Varughese of Leitner Varughese Warywoda PLLC, a plaintiff's attorney who has been in touch with lawmakers seeking a 30-D repeal. "But the negligence that took place from March until the present is horrendous."

One of the difficulties for litigants seeking compensation for an alleged wrongful death is that the immunity shield ups the pleading standard to gross negligence. Plaintiffs rarely win cases of gross neglect and reckless misconduct against health care providers in the Empire State, defense attorneys for nursing homes previously told Law360.

Despite the difficulties posed by the heightened pleading standard favoring nursing homes under 30-D, Varughese and others have started to file lawsuits related to COVID-19 deaths.

Varughese said his firm is preparing over 100 cases against nursing homes and noted that his firm had already filed over 75 notices of claim with New York state in anticipation that nursing home defendants will argue they were simply following state directives.

For now, he is focusing on the time before the immunity provision went into effect.

"Sadly, it's all we're left with because immunity still protects nursing homes for that crucial time period when these 6,000-plus people died," Varughese said.

Advocates for health care organizations, such as the Greater New York Hospital Association, warned their members about the eroded immunity law, while also appearing to celebrate staving off a full repeal.

"Despite GNYHA's opposition, the legislature passed a bill (A.10840/S.8835, Kim/Sepúlveda) that removed immunity protections against claims arising out of services provided to non-COVID-19 patients, even if their care was affected by the defendant's COVID-19 emergency response," the hospital association said in a news memo on its website Monday.

"This change would not be retroactive — a move supported by the trial bar that would have saddled providers with a deluge of claims from a time when hospitals were doing everything possible to respond to the pandemic. Working with many of you, we successfully opposed that push," the GNYHA memo said.

Litigators like Varughese have nevertheless developed a two-step attack against alleged nursing home neglect, he said.

First, the lawsuits will allege nursing homes failed to follow health guidelines before the pandemic or adequately prepare infection prevention protocols even after they were warned by federal and state health regulators about the deadly threat posed by COVID-19, Varughese said. Second, the lawsuits will detail the specific failures at that specific nursing home.

For example, Varughese said, in certain cases nursing homes placed residents together in common areas, which he claims enabled the spread of the virus. "These are the most basic violations of infection control plans," he said.

The firm deployed its strategy in Brooklyn in June, slapping a West Islip nursing home with negligence and wrongful death claims. In the suit, Vivian Rivera-Zayas claims that Our Lady Of Consolation Nursing And Rehabilitative Care Center failed to protect her mother from COVID-19 after she was admitted in January.

The lawsuit is premised on the "abject and longstanding failure to maintain a system for preventing, identifying, reporting, investigating, and controlling infections and communicable diseases … and defendants' failure to adequately care for and protect its elderly and vulnerable residents, which led to the death of the decedent, Ana Martinez, from COVID-19" on April 1, according to the complaint.

A receptionist at the nursing home said no one was immediately available to comment on the lawsuit on Tuesday evening.

Rivera-Zayas testified before a joint hearing of the New York State Assembly and Senate on Monday to tell her story, which moved sympathetic lawmakers.

"Without 30-D they would be able to go to court to seek justice — and they should — but with 30-D they are locked out," Assemblyman Gottfried said, summing up several witnesses' "compelling" testimony.

Those kinds of stories could provide momentum for a further repeal of the immunity law, Gottfried said.

Further hearings on New York nursing homes' and hospitals' response to COVID-19 are scheduled for Aug. 10 and Aug. 12 in Albany.

Rivera-Zayas is represented by Brett R. Leitner, Justin Varughese and Nicholas E. Warywoda of Leitner Varughese Warywoda PLLC.

Counsel information for the nursing home defendant was not immediately available Tuesday.

The case is Vivian Rivera-Zayas as the Proposed Administrator of the Estate of Ana Martinez, Deceased v. Our Lady of Consolation Geriatric Care Center et al., index number 509369/2020 in the Supreme Court of the State of New York, County of Kings.

--Editing by Michael Watanabe.

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