Families want recourse over Cuomo’s handling of COVID in nursing homes

Since the pandemic began, the state’s handling of Covid-19 in nursing homes has been under scrutiny.

Investigations are underway to determine if the Cuomo administration intentionally mishandled or hid data on deaths in nursing homes, but waiting nearly a year for answers has families struggling to get closure after the loss of a loved one.

Anne-Marie Brancati went from seeing her mother-in-law almost every day to not seeing her for almost the entire last year of her life. Her mother-in-law Elenor died at Fort Hudson Nursing Center in January of this year.

"My mother-in-law didn’t die from Covid-19 but she died because of the mandates of Covid-19,” Brancati said. “She died in isolation. She never saw her family for 11 months."

Elenor had late stage dementia. Brancati was forced to say goodbye to the woman who taught her to cook and sew through a cell phone.

"It’s dignity, it’s, to me it’s family,” she said. “I can’t imagine somebody that gave so much of their life to their family to leave this world alone. It’s truly haunting at night and it’s a lot of the reason why there’s no closure for grief for a lot of these families."

One sleepless night Brancati was on Facebook and found "Voices for Seniors." The group helps people who have lost loved ones push for greater protections and accountability from nursing home operators and the Cuomo administration.

Governor Cuomo and health officials maintain the state followed federal guidance when it told nursing homes to admit discharged Covid-19 patients from hospitals.

A report from the New York State Department of Health said the March 25th directive did not significantly contribute to the Covid-19 death count.

However, a January report from the New York State Attorney General’s Office said the state undercounted nursing home deaths by approximately 50 percent.

Then another gut punch for the families, the state budget, passed in April of last year included expanded liability protections for nursing home operators.

"Later we found out that this was literally the last possible policy that the governor pushed in the budget,” Assemblyman Ron Kim said. “Leaving us literally 30 minutes to even review it at the very end of the budget."

Kim said he and his colleagues found out about the liability protections through the media.

"This was at a point where we didn’t know what was going on and as lawmakers it just didn’t make any sense,” Kim said. “They’re not answering questions, the DOH is not picking up their phones and then a week after we found out there was this blanket immunity and we realized what happened. That the industry went to the governor and they got all these new patients to come in with a blanket, near blanket immunity so no one can be charged for criminal wrongdoings or held liable for standard negligence."

Kim has been outspoken on the state’s handling of Covid-19 in nursing homes for the last year. He sponsored the Assembly bill to repeal liability protections.

"It was done in the dark, they cut a deal and then it served as a disincentive for some of these industries to stop spending any more money,” Kim said. “If you’re a for-profit and your goal is to deliver to shareholders and all of a sudden the shareholders, the trustees, everybody got to get out of jail free card pass, you’re not going to spend every dollar you have to save people’s lives."

Though state lawmakers lifted the liability protections in March 2021, that law is not retroactive.

Michael Feldman, a partner at Jacoby & Meyers and Finkelstein & Partners, said that means most families still don’t have a case.

"We get four or five calls a day related to the Covid-19 issue that we have to turn away and it’s sad I mean and the stories are just horrible, they’re heartbreaking,” Feldman said.

Feldman said the ‘Emergency or Disaster Treatment Protection Act’ was billed as a way to protect direct care workers, but it ended up shielding the companies that own and operate these facilities.

Families still had the right to sue if there was gross negligence, but he said that’s not easy in New York State.

“Those cases are going to be difficult, if not impossible to prove,” he said. “You have to show intentionality or willfulness gross negligence and if the nursing home is blaming it on a shortage of staff there is an exemption as well concerning that immunity."

Legislative efforts concerning nursing home care have exposed staffing issues and that some facilities were not prepared with adequate amounts of personal protective gear when the pandemic started.

NewsChannel 13 asked Feldman if decisions to put profit over patient care leading into the pandemic could be considered gross negligence.

"I think that when an administration or the nursing home themselves wants to save money and intentionally deprived their staff of necessary and vital equipment that is definitely willful, that is gross negligence in my opinion,” he said. “A jury would have to make that determination but I think it’s a strong argument."

In order to sue for standard negligence that occurred between March 2020 and March 2021, the law repealing the expanded liability protections would need to be interpreted retroactively. That’s not the case right now, but a lawsuit in federal court on Long Island could change that.

“There’s a pending lawsuit that we’re waiting on in June,” Kim said. “I can’t go into too much details of that lawsuit but I’m confident that the lawyers will win this case and win retroactivity and once they do that would be the precedent for all the other possible lawsuits for families."

And if that ruling isn’t in favor of retroactivity, Kim said the fight won’t end there.

"We have other alternatives that we will push for retroactivity, but we’re confident based on the intent that we’ve given the law that we will win that court case and then give some recourse to the families that are looking for closure,” Kim said.

NewsChannel 13 reached out to the Health Association of New York State, which oversees hospitals and nursing homes, for comment on the expanded liability protections they received, and the push to get them repealed, but they did not respond.