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NY Hospitals Fight Lawsuit That Could Make It Easier for COVID-19 Victims to Sue


New York’s biggest and most powerful hospital groups are trying to squash a lawsuit against a Long Island nursing home that could open the door for victim accountability during the pandemic.

Vivian Zayas is one of many people who lost a loved one to the coronavirus. She recently sued Our Lady of Consolation Nursing & Rehabilitative Care Center for failing to keep her mother safe during the pandemic. If the suit is successful, more survivors may sue for damages, potentially bringing the entire healthcare industry to its knees.

Opening the Door for Victims Seeking Justice

Despite over 600,000 coronavirus-related deaths across the U.S., victim accountability remains elusive.

Surviving family members face a range of hurdles when seeking damages in court. It’s difficult to prove the exact cause of transmission, especially in clinical settings. Several states are also trying to make it harder for individuals to sue businesses for damages after getting exposed to or dying from COVID-19.

However, Zayas’ suit may change all that. She sued the Long Island nursing home last August after her mother, Ana Martinez, died of COVID-19, citing a lack of preventative measures that could have stopped the virus from spreading. 

New York passed the Emergency or Disaster Treatment Protection Act (EDTPA) last year, which shielded hospitals and nursing homes across the state from issues related to malpractice and negligence during the pandemic. The highly controversial law was repealed last April.

In her case, Zayas argues the repeal should extend retroactively all the way back to March 2020 when the pandemic first began, which would give surviving family members like her the power to hold healthcare facilities accountable for any deaths they may have caused.

“They know my case could open the door for victims seeking accountability. We need to protect the residents, not the bottom line of these facilities,” Zayas said. “We need to see accountability and reform — even if it’s one nursing home at a time.”

Gov. Andrew Cuomo came under fire for allegedly trying to cover up the number of New Yorkers that died in nursing homes during the pandemic. The state allowed hospitals to discharge COVID-19 patients to nursing homes as a way of increasing capacity, but critics say the move led to hundreds of outbreaks and preventable deaths among residents and staff. So far, there have been over 53,000 COVID-19 deaths in New York, 15,000 of which occurred in nursing homes.

Far-Ranging Consequences

In an effort to avoid potential liability, several hospital groups and nursing homes are now asking the court to throw out Zayas’ suit.

Lawyers Henry Greenberg and Zackary Knau, who filed a brief on behalf of Our Lady Consolation, said the case would “have far-ranging consequences, including potentially inhibiting the State’s response to future pandemics and mass-casualty events.” They added, “Finding the EDTPA’s repeal to be retroactive would expose those individuals and institutions who relied on the EDTPA’s legal protections to criminal and civil liabilities that the Legislature never intended.”

“As New York turns a corner on its recovery from this devastating disease, courts, in deciding cases arising out of the pandemic, should not forget the important purpose that immunity statutes like the EDTPA play in allowing healthcare professionals and institutions to preserve the lives of those affected by COVID-19 without fear of liability,” the brief read.

New York Attorney General Letitia James recently released a 76-page report detailing long-standing issues within the state’s nursing home industry, including that the for-profit industry essentially turned nursing homes into death traps during the pandemic.

Zayas’ attorney, Brett Leitner, rebuked the hospital and nursing home industry for trying to throw out the suit. “Only after it was uncovered that they were hiding the amount of deaths, and after the AG Letitia James blasted the nursing homes for their reckless conduct, were we able to repeal this ridiculous law which stripped thousands of grieving families of their right to sue,” he said.

“The GNYHA (Greater New York Hospital Association), and its members, are unquestionably extremely concerned, and they should be. If we are permitted to engage in discovery and depose the relevant witnesses, I believe the evidence of negligence and recklessness will be shocking,” Leitner added.

It’s not clear whether Zayas’ suit will be successful. The repeal of the EDTPA doesn’t say anything about the decision applying retroactively.

Zayas has plenty of supporters on her side, including Assemblyman Ron Kim (D-Queens), who says the repeal should apply retroactively. “The hospitals and nursing homes are trying to protect their bottom line. It has nothing to do with the needs of patients or residents,” Kim said. “The immunity law I believe was unconstitutional and should never have happened.”

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