The wave of lawsuits, fueled by the repeal of liability protections and statutory deadlines for filing them, largely accuses nursing homes of failing to properly control disease spread, identify infected residents, and treat their illnesses.
The nursing-home industry in New York claims that much of the devastation caused by the virus was beyond its control, citing staffing shortages, insufficient testing supplies, a lack of masks and other personal protective equipment, and a contentious state policy requiring facilities to admit residents who tested positive for coronavirus.
New York was the epicenter of coronavirus infections in the early months of the pandemic, and the state's nursing-home population was decimated. According to official tallies, by May 2020, less than two months after the first presumed Covid-19 fatality at a New York nursing home, the pandemic had killed more than 6,500 facility residents, a death toll far higher than state leaders had initially acknowledged.
Over the last month, dozens of lawsuits have been filed in New York, and it isn't the only hotspot of litigation. Levin & Perconti, a Chicago plaintiffs' firm specializing in nursing home and medical malpractice litigation, claims to have filed 78 cases in March alone.
"It's going to be a knock-down-drag-out fight," said Steven M. Levin, the firm's founder and senior partner. "It will most likely take years to get some of these cases to trial."
It is now up to the courts to decide how much blame should be placed on the facility's owners. According to legal experts, it may be difficult for the estates of deceased residents to establish a causal link between alleged lapses in infection control and the deaths of an aging, frail population.
Plaintiffs have scored some early victories, which may increase the cost of defending the lawsuits. A New York Supreme Court judge in Buffalo last month refused to dismiss a lawsuit brought by the sister of a 63-year-old resident who died of Covid-19 in April 2020 against an Erie County nursing home, Humboldt House Rehabilitation and Nursing Center.
The woman died just days after New York passed a health law shielding nursing homes and other healthcare facilities from pandemic-related negligence lawsuits. The liability shield was repealed by New York legislators about a year later, but lawyers for Humboldt House argued in court that the repeal was not retroactive.
The judge disagreed, ruling that the legislative history of the law made it clear that the repeal was intended to be retroactive. "We have faith in the judicial process," said Humboldt House attorney Mario C. Giannettino. He stated that the facility's employees "risked and sacrificed their lives during a time of international crisis."
According to Joseph L. Ciaccio, a New York malpractice attorney who represents the administrator of the deceased woman's estate, his law firm, Napoli Shkolnik PLLC, has filed 48 lawsuits against nursing homes, the majority of which have been filed in the last month. Before proceeding with litigation, the firm needed to obtain medical records and wait for the appointment of estate administrators to act as legal representatives on behalf of the decedent's heirs. He was also constrained by time. The statute of limitations for wrongful death claims in New York, as in many other states, is two years from the date of death.
"We're trying to preserve the claims for our clients before time runs out," Mr. Ciaccio explained.
He is also attempting to consolidate pretrial proceedings for Covid-related nursing-home claims in a single court. Nursing homes have voiced their opposition to such consolidation.
Few cases in New York have progressed beyond the preliminary briefing stage. It's unclear whether plaintiffs will ever be able to recover their losses.
According to Nina Kohn, an elder-law scholar at Syracuse University College of Law, plaintiffs may have difficulty proving that a nursing home's actions caused a resident's death "because the virus is so easily transmissible without contact."