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NY Hospital Lobby Intervenes in Leitner Varughese Warywoda COVID-19 Nursing Home Death Suit

NY Hospital Lobby Slams COVID-19 Nursing Home Death Suit

Law360 (June 14, 2021, 7:18 PM EDT) -- Two powerful lobbying groups for New York hospitals have asked a federal judge to toss a suit seeking to hold a Long Island nursing home liable for a resident's coronavirus death, saying the repeal of a state law granting nursing homes immunity does not apply retroactively.

The Greater New York Hospital Association and the Healthcare Association of New York State lodged a joint amicus brief on Friday asking a New York federal judge to toss a suit accusing Our Lady Of Consolation Nursing And Rehabilitative Care Center of causing the April 2020 death of resident Ana Martinez.

The suit filed by the resident's daughter, Vivian Rivera-Zayas, claims that the West Islip nursing home failed to protect her mother from COVID-19 after she was admitted in January 2020.

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," according to the complaint, which was originally filed in state court in June 2020 but removed to federal court by the nursing home in October.

The hospital groups on Friday said the April repeal of the Emergency or Disaster Treatment Protection Act, which had largely immunized health care providers from criminal and civil liability since its passage in March 2020, should not apply retroactively and should shield Our Lady of Consolation from Rivera-Zayas' suit.

The liability shield had given broad immunity to hospitals, nursing homes, physicians and nurses except in cases of willful, reckless or criminal misconduct or gross negligence.

The groups said finding the repeal of the law to apply retroactively would have "far-ranging consequences, including potentially inhibiting the state's response to future pandemics and mass-casualty events."

"It would signal to health care workers that the New York State Legislature and government cannot be trusted," the groups said in the brief.

"The story of the EDTPA, with its partial repeal only a few months after enactment and its total repeal one year later — before the declared emergency is even over — already runs that risk," they added. "This court should not deem the Legislature to have offered safe harbor to frontline workers and care facilities during the toughest of times, only to retroactively repeal that protection in a flurry of hindsight once the emergency began to abate."

In addition, the groups said Rivera-Zayas' claims are preempted by the federal Public Readiness and Protection, or PREP, Act, which confers immunity to "covered persons" who deploy "medical countermeasures" during a public health emergency, and therefore the case should be heard in federal court.

"The PREP Act completely preempts state law and created federal jurisdiction over claims falling within the PREP Act's ambit," the brief states. "Exposing these providers to the very liability the PREP Act seeks to prevent by subjecting them to uncertain and conflicting treatment in state court defeats the express purpose of the PREP Act, contravenes Congress' intent and thwarts the battle against the pandemic."

An attorney for Rivera-Zayas, Justin Varughese, told Law360 on Monday that the repeal applies retroactively because New York lawmakers have already determined that immunity was improperly granted given Gov. Andrew Cuomo's administration's alleged undercounting of nursing home deaths.

In January, New York Attorney General Letitia James said health officials reported 6,645 nursing home deaths as of Nov. 16, when in reality those figures had been undercounted by as much as half.

"Many legislators acknowledged that they issued immunity initially under false pretenses (i.e. they didn't know the volume of the deaths due to inaccurate reporting), and they would not have issued the immunity if they had been aware of the actual statistics," Varughese said via email. "In addition, the attorney general issued a scathing report finding, amongst other things, that the liability protections may have incentivized nursing home executives to cut corners, putting both patients and frontline workers in danger."

An attorney for the GNYHA declined to comment. An attorney for the hospital did not immediately respond to a request for comment.

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

The hospital is represented by Megan A. Lawless and Dylan C. Braverman of Vigorito Barker Patterson Nichols & Porter LLP.

The Greater New York Hospital Association is represented by Henry M. Greenberg and Zackary Knaub of Greenberg Traurig 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 Frank G. Runyeon. Editing by Philip Shea.

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