Governor Andrew Cuomo immediately disputed a NY Attorney General report which claims the state intentionally undercounted coronavirus nursing home deaths by 50 percent.
All states separately report nursing home coronavirus deaths.
But New York is one of the only states in the country which only includes people who die from coronavirus inside nursing homes.
The Empire State does not include residents who are transported to hospitals and pass away there.
If this second method is used, the nursing home death tally goes from just over 8,700 to over 13,000. That’s the sixth-highest total in the nation.
State Attorney General Letitia James said the report provided the “transparency that the public deserves.”
It also examines NY’s March 25 policy of releasing recovering COVID-19 patients to nursing homes.
Many believe that this policy was a large contributing factor nursing home outbreaks and deaths.
To many, the 76-page report cast aspersions on Governor Cuomo’s claims the state was doing everything possible to protect nursing home residents.
In response, New York State Health Commissioner Howard Zucker said his department “has always publicly reported the number of fatalities within hospitals irrespective of the residence of the patient, and separately reported the number of fatalities within nursing home facilities and has been clear about the nature of that reporting.”
At a news conference, Governor Cuomo said the report was politically motivated.
Duty of Care
Regardless of the numbers, nursing homes have a legal duty to keep their residents safe and healthy.
If they breach this duty, and that breach causes injury, the victim could be entitled to compensation.
The safety responsibility usually means screening guests and stationing workers in the halls and common areas.
The health responsibility includes protecting residents against infectious diseases, like coronavirus.
In her report, AG James indicated that a lack of infection controls put nursing home residents at increased risks for illnesses, and that facilities with lower staffing scores had more COVID-19 fatalities.
The Department of Health piggybacked on this discovery by sharing that many that did not comply with state protocols and violated executive orders, including one that makes it mandatory for nursing homes to inform families in “real time” when a COVID-19-related infection or death occurs at the facility.
Most nursing homes have a duty of reasonable care toward most residents. Legally, these individuals are invitees.
They have permission to be on the property, and their presence benefits the owner. In this case, that benefit is financial.
It does not matter if the nursing home is profitable or not.
The duty of reasonable care requires nursing homes to ensure that their residents are as healthy as possible given their pre-existing conditions.
This duty also includes a responsibility to make patient rounds frequently and ensure these standards are maintained.
Nursing home visitors, who will probably be allowed back soon, are usually licensees.
These individuals have permission to be on the land. But their presence does not benefit the employer.
So, nursing homeowners usually have a duty to warn licensees about latent (hidden) hazards.
Knowledge of Hazard
Duty is a question of law.
Breach is a question of fact. Nursing homeowners breached the duty of care if they knew about a hazard, like a coronavirus outbreak, and did nothing to correct the situation.
So, victim/plaintiffs must show that the nursing homeowner knew, or should have known, about the hazard which caused injury.
Direct evidence of actual knowledge includes things like reports of coronavirus symptoms or lack of social distancing.
These reports, which are often emails, usually surface during a lawsuit’s discovery period. A New York personal injury attorney must simply know the right questions to ask.
Circumstantial evidence of constructive knowledge (should have known) is also available. Assume Terry slipped and fell on a banana peel. If the peel was yellow, it most likely just fell.
So, the owner probably did not know about it. But if the peel was gritty and black, many people had probably walked on it, and a nursing home employee should have picked it up.
In both these situations, victim/plaintiffs must establish knowledge by a preponderance of the evidence (more likely than not).
That’s the lowest standard of proof in New York law. So, a little evidence goes a long way.
As mentioned, most nursing home residents struggle with pre-existing conditions.
Falls, the most common nursing home negligence claim, are a good example. Many older adults suffer from Age-related Macular Degeneration and/or a gait disorder.
AMD blurs the straight-ahead vision needed for proper balance. As for gait disorders, when these people stumble, they normally fall.
Pre-existing conditions are also a coronavirus issue.
Older adults are less able to fight off viral infections.
Generally, these pre-existing conditions do not affect a claim for damages. The eggshell skull rule essentially states that defendants must take victims as they find them.
An insurance company cannot use a victim’s vulnerabilities as an excuse to reduce or deny compensation.
This compensation usually includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.
Additionally, these victims receive justice. Legal action shines a spotlight on dangerous nursing home conditions, so facilities must change the way they do business.
For a free consultation with an experienced personal injury attorney in New York, contact Napoli Shkolnik PLLC. The consultation is free and there is no obligation.
In The News: Nursing Home Cases
Man sues Brooklyn nursing home for failing to protect dead father from COVID, New York Post (May 26, 2020)
NYC woman sues Harlem nursing home after dad dies from coronavirus, New York Post (May 25, 2020)