Blame spreads for nursing home deaths even as New York contains virus

Thousands of nursing home patients died of the coronavirus in New York

By Jesse McKinley and Luis Ferré-Sadurní

As New York moves from coronavirus crisis to sustained recovery, there remains a heartbreaking fact that some are trying to explore and others seem to be trying to exploit: Nearly 6,500 people have died of the virus in nursing homes and other long-term facilities in the state.

Republicans in Washington and elsewhere have attacked Gov. Andrew Cuomo for his role in, and response to, those deaths. Cuomo has returned fire, accusing his foes of politicizing a human tragedy and arguing that the blame for the number of deaths lies with infected health care workers, not his own policies.

The death toll — a figure that surpasses that of many states — has also inspired questions from Cuomo’s fellow Democrats, who rule the state Legislature and have scheduled hearings on the issue next month.

The tension and pain surrounding the topic have bled into the debate over a related bill that is expected to be passed Thursday by the Legislature.

The initial goal of the bill’s supporters was to void a last-minute provision, buried in the state budget just before it was passed in early April, that gave nursing homes and hospitals broad immunity from lawsuits stemming from their failure to protect residents from death or sickness caused by the coronavirus.

But after considerable pushback from the hospital and nursing home industries, and legal questions about its scope, the legislation that is being advanced is far weaker, with the immunity merely narrowed.

“This is just a first step,” said the bill’s lead sponsor, Assemblyman Ron Kim, of Queens, where nearly 1,000 nursing homes residents died. “We’re coming back after the hearings to see how we can provide retroactive justice for anyone who feels like they’ve been wronged.”

The fight over the bill highlights how fraught the issue has become for Cuomo and other politicians, as well as nursing home executives, and how sensitive all involved have been to suggestions that they are to blame for the deaths.

Cuomo, a third-term Democrat, has pushed back aggressively on assertions that his administration’s directive of March 25, which effectively ordered nursing homes to accept COVID-positive patients from hospitals, led to more deaths.

In response to that criticism, the state Health Department released a report that essentially absolved the state of any blame. The report concluded that “most patients admitted to nursing homes from hospitals were no longer contagious when admitted and therefore were not a source of infection.”

The report said that the disease was spread by “thousands of employees” who had the disease and did not know they were contagious.

Those conclusions did little to stem Republican criticism that the governor was to blame for thousands of deaths, allegations carried on Twitter and marked by hashtags like #KillerCuomo.

In a letter sent to Cuomo in July, Rep. Steve Scalise of Louisiana, the Republican minority whip who is the ranking member of a House subcommittee on the coronavirus crisis, said the state report was filled with “blame-shifting, name-calling and half-baked data manipulations.”

Cuomo said his political enemies were spreading lies and “ludicrous” accusations.

“It was cheap, it was ugly, it was political, it was Fox News, it was the haters, and it was a lie,” Cuomo said in a July 10 radio interview, a day after Scalise sent his letter. “It’s just a pure lie, not based on any fact, but they did it for political expediency.”

For the families of people who died in nursing homes and assisted living facilities in New York, the political friction overshadowed the importance of seeking accountability for deaths that they believe were preventable.

Many were outraged when the state included the immunity provision in the budget. Advocates called it among the most restrictive protections against lawsuits in the country.

“Having liability can cause a facility to be more diligent and prevent incidents occurring that will cost them money,” said Susan Dooha, the executive director of the Center for Independence of the Disabled. “The preventive power of liability has been muted.”

Under the budget provision, health care facilities and their employees were protected from civil or criminal liability for the duration of the COVID-19 emergency, which Cuomo declared March 7 and is still in force.

The legal immunity did not cover gross negligence or intentional criminal misconduct but would most likely cover a variety of other scenarios, including harm that arose from a shortage in staffing or protective equipment.

The provision was fought for and celebrated by industry lobbyists like the Greater New York Hospital Association, which has close ties to Cuomo and has given hundreds of thousands of dollars to Democratic campaign committees in Albany in recent months (as well as lesser amounts to committees for Republicans, who sit in the minority in both legislative chambers).

Under Kim’s bill, that immunity would be modified to allow legal action if it could be argued that a health care facility or health care professional had failed to prevent a patient from contracting the coronavirus or had not tried to safeguard them from infection.

“We now know how to prevent and arrange for COVID,” said Kim, who is a Democrat. “So we will be able to hold nursing homes accountable.”

The bill will also specify that the immunity clause will “only apply to COVID-19 related care and treatment.” That will restore a path for medical malpractice suits unrelated to COVID-19, said Richard Gottfried, the chairman of the Assembly Health Committee.

But opponents quickly pointed to what they consider shortcomings of the legislation, including a stipulation that the bill would affect only future cases and would not be applied retroactively — a clause that they said would hurt those most affected.

“The overreliance, the overacceptance of the industry’s lobbying efforts, and the credulity that we give to the arguments they make is what led to a large extent to tragedies for families across the state,” said Richard Mollot, executive director of the Long Term Care Community Coalition.

Industry groups argued that repealing immunity could pose constitutional issues and open the floodgates to a barrage of retroactive lawsuits against health care facilities. They said the legislation did not take into account the broad impact a resurgence of the virus could have on the way hospitals and nursing homes care for all patients and residents, not just those ill with the coronavirus.

A surge in cases, for example, could lead to a shortage of health care workers and strain the supply of personal protective equipment, both of which could affect the care provided to those not infected with the virus, they said.

“If the pandemic comes back in full force like it was in April, the pressures that come up at nursing homes don’t affect only people with COVID. They affect all the residents that you’re serving,” said Jim Clyne, chief executive of LeadingAge New York, a group that represents nonprofit nursing homes.

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