Newsweek Spotlights Leitner Varughese Warywoda Efforts for Nursing Home Neglect Justice
For Vivian Rivera-Zayas and her family, the troubles began in January 2020 after her 78-year-old mother Ana Martinez experienced complications from knee-replacement surgery and doctors sent her to Our Lady of Consolation, a nursing home in West Islip, New York, for a few weeks of therapy.
Ana was supposed to return to her Williamsburg apartment by the end of the month, but her discharge was postponed again and again. Then came New York Gov. Andrew Cuomo's March 12 order locking down nursing homes in response to COVID-19. Without daily visits from her family or much access to the Spanish-language newscasts the Puerto Rican native preferred, Ana had little understanding of how the pandemic was spreading across the country and zeroing in on elderly care facilities.
At the end of March, Our Lady of Consolation staff told Ana's daughter Vivian over the phone that it would be promptly discharging Ana, even though by that point she had developed stomach pains, a severe cough, and difficulty breathing. Struggling to figure out what was happening, Vivian began to receive vague and conflicting updates from facility employees every time she called. First they assured her Ana was healthy, then suggested they would be discharging her with an oxygen tank to help her breathe.
Finally, on the day Ana was supposed to return home, the nursing home transferred her to the hospital. The doctors there soon informed her family that Ana had a collapsed lung, and then reported her kidneys had failed. Two days later, on April 1, Vivian received a call from the ICU that caused her to collapse onto the floor, crying out to God. Her mother was gone, having died from COVID-19.
But for Ana's family, the pain wasn't over. In the months that followed, Vivian and her sister Alexa Rivera tried to launch a lawsuit against the Our Lady of Consolation nursing home, so they could uncover what had happened to their mother: why the non-profit facility hadn't sought more extensive treatment when her COVID-19 symptoms first emerged, why they had been ready to discharge her when she had signs of a deadly disease, why more hadn't been done to help her as she lay in her bed, confused and struggling to breathe.
In response to a request for comment on the matter, a spokesperson for Our Lady of Consolation issued a statement that read in part, "As we are constrained by HIPAA obligations, we cannot comment on the care provided to any individual."
The statement also noted, "Catholic Health and Our Lady of Consolation Nursing & Rehabilitation Care Center focus on delivering high quality, compassionate care, which is integral to our mission. We are proud of the extraordinary sacrifice and efforts our highly-trained clinical staff made and continue to make during this ongoing pandemic."
One after another, law firms refused to take the family's case — because the Cuomo administration had recently pushed through a law shielding nursing home owners and operators from legal liability for their actions during the pandemic.
"They got away with killing our mom, and we wanted answers," says Vivian. "But they were telling me the nursing home executives had immunity."
As The Daily Poster reported last May, the Cuomo administration quietly inserted the liability shield provision into the state's 2020 budget bill after a powerful health care industry group that donated more than $1 million to Cuomo's political machine drafted and lobbied for the law.
The provision was ostensibly designed to help nursing homes as they made difficult decisions in the face of an unprecedented emergency. But the law extended the protections not just to medical staff, but also to corporate executives — and critics worried that the law would allow the facilities' owners and operators to cut corners and risk people's lives without repercussions.
As lawmakers pushing to revoke the measure noted in a legislative memo that month, the immunity law "egregiously uses severe liability standards as a means to insulate health care facilities and specifically, administrators and executives of such facilities, from any civil or criminal liability for negligence."
Now, as Cuomo's handling of nursing homes during the pandemic has exploded into a national scandal amid revelations of suppressed COVID death counts alongside reported threats against Cuomo critics and allegations of sexual harassment, The Daily Poster has found the law is indeed insulating nursing home administrators and executives from civil or criminal liability for their actions.
Over much of the past year, the provision has apparently had a chilling effect across the state, causing many lawyers to refuse all new nursing home-related negligence cases, whether or not they seem to be directly related to COVID-19, and limiting the scope of other legal actions begun before the pandemic. Though New York has seen more than 15,000 nursing home deaths, there have only been a handful of wrongful death cases filed in the state, according to data compiled by the law firm Hunton Andrews Kurth, which has been tracking COVID-related cases.
The result of the immunity law, say those affected like Ana's daughter Vivian, is that they have no way to demand accountability, no way to seek justice. And while efforts are now mounting to revoke the statewide liability shield once and for all, the impact of the law in New York State and beyond will continue to linger, the pain of those who say they were harmed by the law won't soon go away.
"I think the law they passed gave the facilities an excuse to do the bare minimum to keep these people alive," says Vivian. "Cuomo said the COVID-19 threat to nursing home residents was like 'fire through dry grass.' My mother was dry grass — and they brought in the matches."
"Lobbying Money Well Spent"
On April 3, 2020, as the media was reporting on how New York was becoming a global coronavirus hot spot, Cuomo signed into law the state's budget bill for the year, which included a little-noticed provision on page 347 that noted that executives, board members, trustees, and other corporate officials at nursing homes and other health care facilities "shall have immunity from any liability, civil or criminal, for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services" related to COVID-19.
The liability shield, which covered both lawsuits and criminal prosecutions, was made retroactive to March 7, 2020. A Cuomo spokesperson would later insist the measure wasn't due to industry influence — but lobbyists suggested otherwise.
The day before the measure became law, the Greater New York Hospital Association (GNYHA) — a major lobbying group that represents hospital systems, including some that own nursing homes, that has donated more than $1.25 million to Cuomo's political operation — sent out a memo stating it had "drafted and aggressively advocated for this legislation."
As GNYHA noted to its members in the announcement, "You and your heroic workers have enough to agonize over without having to worry about liability for decisions and actions made under extraordinarily challenging circumstances."
The provision's effect was immediate.
Holly Mosher, a partner at the Friedlander & Mosher, P.C. law firm in Ithaca, which focuses on nursing home negligence cases, told The Daily Poster that before then, her firm usually followed up on several reports of alleged nursing home abuse or neglect each week. Now, suddenly, they weren't looking into any potential new cases at all. That included not just allegations of residents getting sick or dying from COVID-19 because of improper conditions, but also claims of negligence that seemed to have little to do with coronavirus at all, such as preventable injuries and bedsores, other than the fact that the incidents occurred in the middle of the pandemic.
"We didn't take any of them," says Mosher. "Granted, the majority of the calls we got were COVID-related, but there were certainly enough other cases that came in that were not COVID-related that were covered by the immunity law."
Mosher says she and her colleagues had no choice but to reject client after potential client.
"Most of them were simply outraged," she says. "How could their loved ones be treated this way, and then they can't hold the nursing homes responsible?"
Mosher is part of an online listserve of New York nursing home attorneys, and she says the behavior of her firm was far from unique.
"It was basically the consensus of members of our listserve to not proceed with cases, because of the immunity law," she says.
The liability shield has also had an impact on preexisting cases. In 2018, White Plains attorney Jeremiah Frei-Pearson filed a class-action lawsuit against the owners of the Sapphire Nursing and Rehab facility in Goshen, New York, after the for-profit company purchased the formerly nonprofit nursing home, slashed staff, and allegedly overlooked the resulting deteriorating conditions, such as residents left to lie in their excrement for hours and begging for food and care.
But last October, the judge in the class action granted the nursing home company's motion to limit the time period of the case to the period before March 7, 2020, the day the liability shield for facility executives went into effect.
Now Frei-Pearson says he cannot bring new residents of the facility into the class action.
"We want people in the home to hear about us and to contact us," he says. "But if you entered the home after COVID-19, you cannot be in touch with us."
Attorneys insist nursing home negligence cases are not designed to target nursing home employees and other frontline workers caring for facility residents during the pandemic. As Mosher notes, "In most cases, these people are just as much victims as the residents."
Instead, the lawsuits are going after nursing home owners and operators, a population that has become increasingly dominated by private equity firms, shell companies, and other secretive for-profit operations, which make staffing and other decisions about quality of care in boardrooms and corporate offices far removed from those who are impacted.
The results of these cases are not about simply scoring million-dollar settlements and padding lawyers' pockets, say legal experts. Torts and class action suits are an important deterrent to bad behaviors in an industry that has become known for lax oversight.
"If we had robust government enforcement, it might not be as big a problem to have the liability shield, but that is not what we have," says Syracuse University law professor Nina Kohn, an expert in elder law. "Government regulators have fallen down on the job."
Across the country, says Kohn, nursing home regulators have been known to regularly classify code violations as less serious than they actually are, and penalties long been so minimal they were often seen as largely toothless. A change in how the government issued nursing home fines under the Trump administration reduced penalties even further.
During the pandemic, other methods of uncovering worrisome conditions were stripped away when the federal Centers for Medicare and Medicaid Services effectively banned facility visits by family members and ombudsmen, except in limited circumstances.
With the addition of the liability shield, there was hardly any way at all to ensure nursing home operators were safeguarding their residents during the deadly COVID-19 pandemic, rather than just protecting their bottom line.
"The nursing home lobby knew exactly what it was doing," says Kohn. "This has been an effective way for facility owners and operators to protect themselves from liability — and not just liability for problems caused by COVID-19, but also for serious problems and patterns of behavior that predated the pandemic.
"This," she says, "was lobbying money well spent."
"The Shadow Of This Is Going To Last"
Last August, New York lawmakers rolled back part of the liability shield provision, stripping legal immunity from facility operators for decisions they made that were not directly related to COVID-19.
After Cuomo signed the bill into law, lawyers like Mosher once again began taking some nursing home cases. But she still had to ignore all reports of facility problems connected to the pandemic, such as insufficient levels of COVID-19-related testing and personal protective equipment, and policies that allowed staff to work at more than one nursing home at a time, thereby increasing the likelihood of virus spread.
Then, in January, a report by New York Attorney General Letitia James found Cuomo's office had been undercounting state nursing home deaths by 50 percent. The following month, Cuomo aide Melissa DeRosa — whose father, brother, and sister work a lobbying firm representing the hospital industry group that authored the liability shield law — admitted to legislators that the administration had withheld the data to avoid political and legal consequences.
As the matter spiraled into a full-blown scandal, the public image of Cuomo shifted from a tough-talking hero of the pandemic to a malicious dealmaker who reportedly threatened to destroy anyone who stood in his way and allegedly sexually harassed several women, including members of his staff.
Amid the political crisis, Cuomo's administration worked to stem the damage. On February 19, the governor's office announced a slate of proposed nursing home reforms.
"Facilities have put profits over care for far too long," Cuomo said.
None of the potential legislation, however, aimed to remove these facilities' immunity to coronavirus-related legal actions. While a Cuomo spokesperson did not respond to multiple requests for comment on the matter, State Senator Alessandra Biaggi pressed New York Health Commissioner Howard Zucker on whether the Cuomo administration still supported the liability shield during a legislative budget hearing last week.
"We are looking at it at this point in time," Zucker replied. "I go back to the issue of where we were then, and our numbers where they are today. The numbers are now coming back down, [and] necessary changes can be made."
The Cuomo administration might not have time to make such a decision itself. Spurred on by the mounting nursing home scandal, the New York State Assembly is currently holding an emergency session to revoke the liability shield and pass other nursing home reforms.
"Last year, part of the reason we only got to do a partial repeal was because the nursing home fatality numbers were completely repressed," says New York Democratic Assemblyman Ron Kim, who claims Cuomo threatened to ruin his career after he spoke out about the governor's handling of the nursing home crisis. "We didn't have the data to back up the arguments to get to full repeal."
Now that lawmakers have that data, not to mention a growing demand from the public to make things right, Kim predicts that the "entire section will be struck from the law. There will be no legal shield for any of these facilities."
The repeal will be retroactive, says Kim, whose uncle died of presumed COVID in a nursing home. That means nursing home owners and operators could be held liable for any decisions they made at any point during the pandemic.
But even if the liability shield is revoked, its impact could remain long after the fact. Many of the people whose earlier attempts to seek legal action were rebuffed might not try again, says Mosher, noting, "I think there would certainly be cases lost through the cracks."
She adds that simply revoking the legal immunity clause won't eliminate many of the basic problems that have long plagued the country's elderly care industry.
"A lot of people don't realize the issues going on in nursing homes were not brought on by COVID-19," she says.
Furthermore, the passage of New York's liability shield inspired similar legislation across the country. While U.S. Senate Republicans failed in their attempt last year to pass a federal corporate nursing home immunity law that mirrored Cuomo's provision, many states have been successful in their efforts. Even if New York revokes its immunity provision, 26 other states will still have laws on the books protecting nursing homes from lawsuits.
While most of these laws are not as far-reaching as New York's original liability shield, together they could be discouraging nursing homes from taking proper precautions against the virus. According to an analysis conducted by Kim last May, more than three-quarters of total COVID-19 nursing home deaths at the time had come from states that had passed corporate immunity provisions for health care facilities.
"There is such bipartisan willingness to sacrifice the lives of vulnerable older adults," says Kohn, the elder care expert. "The shadow of this law is going to last."
"We Want Answers"
Vivian Rivera-Zayas and her sister eventually found a lawyer willing to take on their case against Our Lady of Consolation over the death of their mother Ana: a New York attorney specializing in nursing home negligence cases named Brett Leitner.
While Leitner hadn't heard of many other New York attorneys willing to attempt such cases, he thought the sisters had a chance despite the liability shield, because he believed the facility hadn't taken proper precautions in response to a coronavirus warning notice sent to health care facilities across the country by the Centers for Medicare and Medicaid Services on February 6, 2020, before the immunity provision went into effect.
Thanks to Leitner's efforts, Vivian learned other troubling facts about Our Lady of Consolation. According to her, before the pandemic, the nursing home was cited multiple times for health and safety violations, including for not properly implementing an illness prevention and control program. And based on New York State Department of Health data, after accounting for fatalities originally underreported by the Cuomo administration, 69 residents of the 345-bed facility are believed to have died from COVID-19. That number suggests the nursing home has recorded among the top 20 most coronavirus deaths in the state, out of more than 550 facilities.
In September, Leitner filed a lawsuit against the nursing home in New York's Kings County Supreme Court, although the defendants subsequently had the matter moved to federal court. On Monday, lawyers for Our Lady of Consolation filed a motion to dismiss the case based on New York's liability shield.
According to the motion, the liability shield "affords broad-based immunity to healthcare providers where a patient's care was impacted by decisions and activities related to the prevention and treatment of COVID-19. Since plaintiff's allegations specifically invoke the sweeping immunity protections of [the law], the complaint must be dismissed."
As far as Leitner knows, this is the first attempt to dismiss a nursing home lawsuit in New York based on the liability shield.
"It is a very significant motion to decide whether these cases can proceed," he says. If the motion fails — either because the court rejects the defendant's current argument as is, or because New York's legislature succeeds in abolishing the immunity law — Leitner says "It will open up the valve, and you will see many other law firms taking on these cases."
Vivian Rivera-Zayas, right, and her sister Alexa Rivera at a VoicesForSeniors protest. (Photo courtesy Vivian Rivera-Zayas)PHOTO COURTESY VIVIAN RIVERA-ZAYAS
For Vivian, the victory would be bittersweet. Even if the lawsuit is allowed to proceed, the triumph won't bring her mother back. Her grandchildren will never get a chance to meet their great-grandmother, they will never again get to enjoy Ana's homemade carrot cake, or the sofritos she would cook up and distribute to the family in old mayonnaise jars.
Vivian and her sister have now started a grassroots organization, VoicesForSeniors, that advocates in New York and beyond for nursing home reforms. But their efforts cannot change the fact that when Our Lady of Consolation handed over what remained of their mother's possessions — a small box holding her glasses and shoes — they never bothered to offer an explanation, much less an apology.
It's why the sisters took the matter to court — not for money, but for justice.
"They got away with killing our mom, says Vivian. "And we want answers."
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