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  • Writer's pictureLeitner Varughese Warywoda

NY Post profiles Leitner Varughese Warywoda's "precedent-setting" "far-ranging" nursing home suit


Hospital lobby moves to kill COVID suit seeking to hold nursing home liable

By Carl Campanile June 13, 2021

New York’s powerful hospital groups have taken steps to get a federal COVID-19 lawsuit against a Long Island nursing home tossed — calling it a potentially precedent-setting case that could have damaging, “far-ranging consequences” for the industry.

The Greater New York Hospital Association and NYS Health Care Association filed papers in Brooklyn federal court on Friday challenging the suit brought by Vivian Zayas, whose mom died of coronavirus last year following her stay at Our Lady of Consolation.

Zayas, who sued last August, is seeking to hold the West Islip nursing home liable in her mom’s death, saying it failed to take adequate preventative measures to keep the killer bug from spreading.

“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 it’s one nursing home at a time.”

At the heart of Zayas’ case is the repeal of the Emergency or Disaster Treatment Protection Act, a state law that shielded hospitals and nursing homes across New York from medical malpractice and negligence claims over their handling of the pandemic.

The controversial law was greenlit by Gov. Cuomo — who’s faced intense scrutiny over his handling of the pandemic in nursing homes — and the state legislature in the spring of 2020 before it was repealed altogether in April.

With her lawsuit, Zayas believes the repeal should be retroactively applied back to March 2020 — though the hospital and health-care lobby argues that would take a devastating toll on the industry.

The hospital and nursing home lobby groups also claim that a federal law — the Public Readiness and Emergency Preparedness Act — pre-empts any state law regarding negligence cases during the COVID outbreak.

More than 53,000 New York State residents have died from COVID, according to Johns Hopkins University data and statistics from the state Health Department show more than 15,000 of them were living in nursing homes — a number that was covered up for months by the Cuomo administration.

Zayas’ attorney, Brett Leitner, ripped the group’s attempt to get her suit dismissed.

A 76-page report released by New York State Attorney General Letitia James found that mismanagement and long-standing problems in the private care business turned nursing homes into COVID death traps.

“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, and their 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.”

The language in the law that repealed the immunity afforded to the healthcare industry does not explicitly say it can be applied retroactively.

But Assemblyman Ron Kim (D-Queens) believes it can.

“The hospitals and nursing homes are trying to protect their bottom line. It has nothing to do with the needs of patients or residents,” said Kim, a staunch critic of Cuomo who filed an affidavit with the court in support of Zayas’ suit.

“The immunity law I believe was unconstitutional and should never have happened".

The full article can be found here: NY POST


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