Families Plan Class Action Lawsuit Over New York’s Nursing Home Deaths From COVID-19

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Daniel Arbeeny lost his 89-year-old father, Norman, to COVID-19 after he contracted the virus in a nursing home facility in Brooklyn last year.

Now, Arbeeny and a cohort of other families who have lost loved ones in nursing homes due to COVID-19 are working with a number of law firms on a class action lawsuit against the New York state government regarding their handling of nursing home COVID-19 outbreaks.

“This isn’t about daddy. This is bigger than us,” Arbeeny said. “And we’re up to the task.” 

The Arbeenys are among hundreds of families who have been advocating for a comprehensive accounting of the government’s handling of COVID-19 in nursing homes under former Gov. Andrew Cuomo. The now-former governor resigned in August following multiple scandals, including an investigation by New York’s Attorney General that found the state had undercounted the number of COVID-19-related nursing home resident deaths by 50 percent in its initial report. 

A recent study suggests New York may not be alone in its undercount of COVID-19 nursing home deaths. The study published in JAMA Network Open, a peer-reviewed medical journal under the American Medical Association, found the true national toll of nursing home resident deaths due to COVID-19 is likely 14% higher than what the federal government tracker shows. This discrepancy, according to the paper, is due to inconsistency in states’ reporting before and after a federal mandate in late May 2020. 

For that study, researchers reviewed 20 states, comparing the federal count for each state to the number of cases and deaths tracked locally. They found that, on average, four in 10 deaths went unreported before the federal reporting mandate took effect.

“(A)pproximately 44% of COVID-19 cases and 40% of COVID-19 deaths that occurred before the start of reporting were not reported in the first NHSN submission in sample states, suggesting there were more than 68,000 unreported cases and 16,000 unreported deaths nationally,” the study says.

Based on these findings, researchers estimate there were 118,335 COVID-19 deaths among nursing home residents nationwide in 2020. The discrepancy in reporting appeared higher among northeastern states where the pandemic hit hardest, like New York.

As the pandemic gripped the state, the governor’s office put out guidelines on March 25 of last year, directing nursing homes to take in COVID-positive patients, a policy suggested having worsened conditions in the facilities housing elderly patients most vulnerable to the virus. As the attorney general’s  report stated, those guidelines “may have put residents at increased risk of harm in some facilities and may have obscured the data available to assess that risk.” 

As many as 15,000 nursing home residents have died from COVID-19 in New York, according to the latest data released by the Department of Health following a state Supreme Court judge order.

Arbeeny believes the March 25 directive exacerbated terrible conditions inside nursing homes across the state that were already overwhelmed by the virus, providing families with the foundation to potentially sue the government — and, possibly, former New York Gov. Andrew Cuomo, who Arbeeny argued should still be held accountable. 

“Cuomo’s resignation doesn’t alter his liability,” Arbeeny said. 

However, some are seeking accountability elsewhere. Resident Vivian Rivera-Zayas filed an individual complaint against a nursing home in Long Island over her mother’s death from COVID-19, also last year, one of the first lawsuits of its kind in the state. 

As the New York Daily News reported, Rivera-Zayas was assured repeatedly by nursing home staff that her mother, Ana, was in good health. It wasn’t until March 30, 2020, that Ana was discharged to a hospital due to her declining health. Ana died from COVID-19 two days later.

Legal experts say malpractice lawsuits are difficult to win but even more so after the state enacted a so-called “immunity law,” which has since been repealed. The law, called the Emergency Disaster Treatment Protection Act, was passed by Cuomo through New York’s budget in April 2020. It expanded liability protections for healthcare workers and facilities to include healthcare executives, such as executive board members and CEOs. The governor also waived medical record-keeping for healthcare facilities and banned families from entering nursing homes during the pandemic.

“Those are very important things because we have no way of proving that there was gross negligence if you don’t have medical records or people monitoring the sites,” New York Assembly Member Ron Kim, who has been pushing for accountability mechanisms over the state’s handling of nursing home protocols through the pandemic, said. “It was a perfect storm where [nursing homes] can do whatever they want, short-staffed and act negligently, knowing that they can’t get sued or be held criminally liable.” 

In January, Kim introduced a bill to fully repeal the immunity law, which gained overwhelming support in the legislature following the attorney general’s report. The bill was signed into law by Cuomo in April, which many saw as a result of his weakened influence following multiple scandals at the time.

Families seeking legal action against nursing homes over the COVID-19 death of a family member were turned away by attorneys due to the liability shield but now with its repeal Kim said, many have re-engaged with legal counsel. He believes the repeal will also have a significant impact on Rivera-Zayas’s case (Rivera-Zayas v. Our Lady of Consolation Geriatric Care Center et al). A New York federal judge ruled in August that the lawsuit would be allowed to move forward in state court, denying the nursing home’s motion to dismiss the case. 

“I hope that they will be successful and set the precedent for other families who believe that their family members were wrongfully hurt, to have their day in court,” Kim, who filed an affidavit in support of Rivera-Zayas’s case, said. 

For other families, like Arbeeny and his siblings, the buck ultimately stops at the Executive Office. 

“The problem is those nursing homes would have never taken (COVID positive patients) had the governor not forced them,” Arbeeny said. His family and hundreds of others are currently preparing class action lawsuits.

“We want justice, and the only way for true justice to happen now for us ‘nursing home Covid orphans’ is through the legal system,” he said. “There is no other avenue for us.”

Correction: An earlier version of this story incorrectly indicated two nursing home deaths took place in 2021, when they in fact took place in 2020. The story has since been updated.

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