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  • Writer's pictureLeitner Varughese Warywoda

Federal Court rules for Leitner Varughese Warywoda in Nursing Home COVID Death Suit

Updated: Jan 12, 2022

Judge Slams Nursing Home 'Machination' In COVID Death Suit

Law360 (August 12, 2021, 8:46 PM EDT) -- A New York federal judge has said a Long Island nursing home can't escape claims by the family of a resident who died of COVID-19, finding that the center must face the lawsuit in state court. U.S. District Judge Nicholas G. Garaufis said on Wednesday that the facility attempted to defeat the suit with a "two-step maneuver" that amounted to an "internally inconsistent machination." Judge Garaufis' order granted Vivian Rivera-Zayas' motion to send her lawsuit, which claims Our Lady Of Consolation Nursing And Rehabilitative Care Center is responsible for the wrongful death of her mother, Ana Martinez, back to state court. He denied the facility's motion to dismiss the case. The nursing home first moved in October 2020 to have Rivera-Zayas' lawsuit pulled from state court and sent to district court, saying her claims were preempted by the Public Readiness and Emergency Preparedness Act. While in federal court, the nursing home then requested that the lawsuit be dismissed in June 2021, saying the New York federal court lacked jurisdiction because Rivera-Zayas was supposed to first pursue and exhaust all administrative remedies prior to filing a lawsuit, as required by the PREP Act. But Judge Garaufis said such a tactic has been rejected by the appeals court before. "The court also notes that the two-step maneuver advanced by Defendants … asks the court to approve the same internally inconsistent machinations that [the Second Circuit has] expressly foreclosed." Our Lady of Consolation argued that it qualified for the liability immunity provided under the PREP Act because it is an assisted living center deploying "medical countermeasures" during a public health emergency, specifically the COVID-19 pandemic. The law, passed by Congress in 2005, includes an exception for "willful misconduct," but a plaintiff must still go through an administrative process and then file a lawsuit with the D.C. federal court, the nursing home argued. But Judge Garaufis ruled that the PREP Act does not "completely" preempt state claims against an associated living facility. He cited a similar case decided in New York federal court, Dupervil v. Alliance Health Operations, that remanded a lawsuit against another nursing home back to state court in February. Alliance Health Operations has appealed that decision to the Second Circuit. Judge Garaufis also refused to decide on Our Lady of Consolation's other argument: that it is shielded from civil and criminal lawsuits related to COVID-19 as part of the state's Emergency or Disaster Treatment Protection Act. New York repealed part of the statute that covered nursing homes in April, but Our Lady of Consolation argued that since Martinez died before the repeal it still has immunity. In the weeks leading up to that decision, hospital lobbying groups rallied behind Our Lady of Consolation, submitting amicus briefs in its favor. The Greater New York Hospital Association and the Healthcare Association of New York State said not giving the nursing home immunity under the repealed law would "signal to health care workers that the New York State Legislature and government cannot be trusted." Neither party immediately responded Thursday to questions for this story. Rivera-Zayas is represented by Brett R. Leitner, Justin Varughese and Nicholas E. Warywoda of Leitner Varughese Warywoda PLLC. Our Lady of Consolation is represented by Megan A. Lawless and Dylan C. Braverman of Vigorito Barker Patterson Nichols & Porter LLP. The case is Rivera-Zayas v. Our Lady of Consolation Geriatric Care Center et al., case number 2:20-cv-05153, in the U.S. District Court for the Eastern District of New York. --Additional reporting by Y. Peter Kang. Editing by Peter Rozovsky.

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