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

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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over his handling of the pandemic in nursing homes — and the state legislature in the spring of 2020 before it was repealed altogether in April.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.

“Finding the EDTPA’s repeal to be retroactive would expose those individuals and institutions who relied on the EDTPA’s legal protections to criminal and civil liabilities that the Legislature never intended,” said lawyers Henry Greenberg and Zackary Knaub of GreenbergTraurig, the firm that filed what’s known as a “friend of the court” brief on behalf of Our Lady of Consolation in Zayas’ case. “Doing so would have far-ranging consequences, including potentially inhibiting the State’s response to future pandemics and mass-casualty events.”

The court papers warned against retroactively repealing the “safe harbor to frontline workers and care facilities” that was offered by the state Legislature “during the toughest of times.”

“As New York turns a corner on its recovery from this devastating disease, Courts, in deciding cases arising out of the pandemic, should not forget the important purpose that immunity statutes like the EDTPA play in allowing healthcare professionals and institutions to preserve the lives of those affected by COVID-19 without fear of liability,” the document said.

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 Reitner, ripped the group’s attempt to get her suit dismissed.

“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.”

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