9 June 2021: Lawsuit Filed Against New York Nursing Home for COVID Deaths

Lawsuit over couple’s Covid-19 deaths challenges nursing homes' immunity

We're featuring this story because it may be representative of the kind of claims that will be settled in court seeking to pierce the immunity from legal liability for COVID deaths that Governor Cuomo agreed to gift to a powerful lobby group whose members include hospitals and nursing home operators during the coronavirus pandemic on 2 April 2020.

The Covid-19 deaths of a husband and wife who died two days apart in an Albion nursing home has set the stage for what's believed to be among the first lawsuits challenging the controversial pandemic immunity the state granted to medical facilities.

The lawsuit alleges William F. Ames, 89, and Martha F. Ames, 88, contracted the virus at the Villages of Orleans Health and Rehabilitation Center because the nursing home lacked adequate preventative infectious control policies, sufficient staffing and enough personal protective equipment.

“Things were bad at that nursing home way before the pandemic and things were exacerbated with the pandemic,” Susan A. Fuller said. “It is definitely their fault my mom and dad died of Covid.”

She provided death certificates showing her parents died of Covid-19; William on April 22, 2020, and Martha on April 24.

Nursing homes and hospitals were protected from lawsuits stemming from the pandemic, except in the most egregious cases, from March 2020 through the early days of this past April when the immunity protection was repealed by state lawmakers....

The immunity provision, which was part of the 2020 state budget, provided a narrow exception, allowing lawsuits when “harm or damages were caused by an act or omission constituting willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm by the healthcare facility or health care professional ..."

But the provision also insulated the facilities and workers, stating that if staffing shortages were to blame, immunity remained in place.

The legal question now is whether the legal immunity from COVID deaths gifted by Governor Cuomo will apply in this case. The nursing home in question has a history of being fined for deficient care practices and is currently the subject of a state investigation. The nursing home experienced a disproportionately large number of COVID deaths.

The case is also interesting because the timing of the Ames' deaths indicates they were initially exposed to the SARS-CoV-2 coronavirus during the period the Cuomo administration's deadly 25 March 2020 directive was in effect. At the same time, the issue of inadequate Personal Protective Equipment (PPE) supplies are related to purchasing arrangments established by the Cuomo administration that favored funnelling these supplies to hospitals at the expense of the needs of nursing homes.