Families in New York who believe their loved ones died of the coronavirus in a nursing home because of mismanaged facilities recently found out they have no legal recourse.
In late March, New York was working to put together a budget while the coronavirus pandemic was just beginning to wreak havoc on the state. According to a Wednesday report from the New York Times, aides to Gov. Andrew Cuomo added a provision to the budget that barred as many as 5,300 families from suing nursing homes if they believe their relatives died of the coronavirus because of mismanaged facilities.
The provision, which was included on page 347, under the radar of many lawmakers who voted to pass the package, forbids legal recourse related to the pandemic against hospitals, clinics, and nursing homes. It does not include willful or criminal misconduct or gross negligence in its protections but does protect nursing homes that made questionable decisions because of staffing issues or a lack of personal protective equipment.
“This legislation is not intended to shield any bad-acting facilities during this tragic time, but rather to ensure facilities could continue to function in the face of potential shortages and other evolving challenges the pandemic presented,” Dani Lever, a spokeswoman for Cuomo, defended the policy.
Jim Clyne, the CEO of a group that represents legal nonprofit groups, said he lobbied for the legislation because “providers need to feel safe to take care of people” without fearing lawsuits.
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However, with bodies piling up in makeshift morgues, many families are outraged after finding out they cannot sue such facilities. Vivian Rivera-Zayas, a Long Island resident, said her mother’s lung had collapsed after testing positive for COVID-19 before the nursing home referred her to the hospital. Her mother died two days after her referral.
“They can’t just shrug their shoulders and say, ‘It’s a pandemic,’” said Rivera-Zayas. “There has to be accountability.”
Rivera-Zayas said she plans to sue the nursing home her mother was in, but added, “Cuomo may have tied our hands.”
Cuomo has been widely criticized for an executive order he put into place on March 23, mandating that nursing homes readmit COVID-19 patients after they are discharged from the hospital, even if they were still contagious. The order was announced around the same time that the budget provision was include. Cuomo has since reversed the readmittance policy and no longer allows nursing homes to readmit coronavirus patients.
Assemblyman Richard Gottfried admitted that he did not review the immunity clause for nursing homes when he voted to approve the budget in early April but called the provision “troubling” on Wednesday.
“There’s a very long history of abuse and neglect of nursing home residents. And to add to that, a reduction in the ability of patients and family members to seek relief in the courts is very scary,” he said.
Ron Kim, a Democratic assemblyman from Queens who did not vote for the budget due to other reasons, recently introduced legislation that would repeal the provision.
“For us to change the liability standard without any discussion is borderline criminal,” said Kim. “It’s ridiculous. Why would anyone comply with rules if they felt like they couldn’t be touched?”
Cuomo’s office opposed the repeal and said that lawmakers should have read the bill in the first place.
“This bill was not done in the dark, and elected officials cannot be blindsided by language in a bill unless they don’t read it,” Lever said.
