18 June 2021: Inside the NYS Bar Association Task Force's Report

NYS Bar Association report: Plenty of shared blame for COVID-19 nursing home deaths

This report provides additional coverage of the New York State Bar Association's task force's findings on the impact of the Cuomo administration's deadly 25 March 2020 directive on nursing home residents. The following excerpt presents task force member John Dalli's comments

An attorney, Dalli specializes in personal injury and medical malpractice litigation. He said one of the key findings of the 200-plus page report was the governor's March 25, 2020 directive requiring nursing homes to admit COVID-19 patients regardless of whether they were still positive and if that contributed to the death toll in those facilities and if keeping it in place for roughly six weeks was a mistake.

"It led to a disaster,” Dalli said. “They should have realized it within two weeks. They didn't. It went on too long and there's no doubt in my mind it lead to additional deaths that certainly contributed to that 15,000-plus number."

But Dalli said there's shared blame between the governor, the Department of Health and the nursing home operators who should have been aware the directive did not supersede public health law preventing them from admitting patients for whom they didn't have the ability to provide adequate care.

"Basically, if they're going to take the money to care for them, they're making a promise that they can for them properly and keep them safe and the governor and the Department of Health were operating under that assumption when they issued the March 25 directive,” said Dalli.

At the same time, the report points out the state failed to utilize resources from the federal government like beds at the U.S.S. Comfort and the Javits Center that could have been used for nursing home patients with COVID-19.

It also concludes the state made another key mistake.

"I think the immunity that he granted nursing home owners from civil liability and lawsuits, which was fortunately revoked in April of this year, that was certainly a mistake because it disincentivized nursing home owners from having the proper staffing and providing the adequate care," Dalli said.

Before we continue, we should note the lobbying group representing both New York hospitals and nursing home operators absolutely recognized what would happen as a result of the Cuomo administration's deadly 25 March 2020 directive. After it went into effect, the lobby went into overdrive to secure legal immunity from COVID deaths they reasonably expected to occur from it before any deaths attributable to it were recorded. They obtained Governor Cuomo's pledge to provide them with legal immunity on 2 April 2020, who made sure it was inserted on Page 347 of an emergency budget bill New York's legislature approved in the early hours of the morning on the following day.

Governor Cuomo was well aware the impact would be negative, as confirmed by his public comments on 29 March 2021. His description of COVID and nursing homes as a "toxic mix" several days before the deal was struck almost certainly reflects the discussions he and his staff were having with the hospital and nursing home lobbyists behind the scenes.

Our working theory of the case suggests the deal was struck when Governor Cuomo agreed to provide New York hospitals and nursing homes with legal immunity from COVID deaths in return for their effective silence on deaths resulting from the deadly 25 March 2021 directive. In that respect, we think the 2 April 2020 deal marks the beginning of the Cuomo administration's cover-up of the full extent of COVID deaths among nursing home residents, which continued until Secretary to the Governor Melissa DeRosa acknowledged the cover-up with Democratic Party legislators on 10 February 2021. That latter event became known to the public on 11 February 2021, which ultimately triggered a federal criminal investigation.