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  • Nicholas Dell'Anno, Esq.

COVID-19 Nursing Home Malpractice - Issues for Discovery

Executive Order 202.30, issued May 10, 2020, now requires all personnel of nursing homes and adult care facilities to be tested for COVID-19 twice weekly. This might be an important turning point to nursing home negligence cases involving mismanagement of COVID-19.

The COVID-19 pandemic creates a potential floodgate of complaints by aggrieved families whose loved ones were in a nursing home and fatally contracted the virus. The difficulties in proving that a particular patient contracted COVID-19 due to nursing home negligence, as opposed to that patient being transferred to a hospital or from another unforeseeable source, can lead to a case being unwinnable. However, the key to proving and winning such a case will turn on the particular facts of each case, and will turn on discovery that could present many potential issues of first-impression that will be ripe for litigation.

HIPAA privacy requirements will likely lead to objections to turning over the health information of a facility's residents and staff who tested positive or negative for COVID-19. Facilities face hefty penalties for disclosing such information without a court order, which will require plaintiff's counsel to present research to the courts as to why such information should be disclosed in redacted form to protect HIPAA rights as much as possible while allowing for the discovery necessary to prosecute the case. Even so, courts might be reluctant to grant such disclosure, and an appeal might be necessary if the information is critical to the case.

In any event, aside from seeking redacted medical records (i.e.- redacting patient identifying information) from other patients diagnosed with COVID, the following should be demanded, based on Executive Order 202.30, in cases where COVID-19 mismanagement is a factor:

  • Copy of any and all plans for the testing of all personnel, including but not limited to the employees, contract staff, medical staff, operators and administrators of Defendant, for COVID-19

  • Copy of all Certificates of Compliance with New York State Executive Order 202.30 respective to Defendant

  • Copy of all Certificates of Compliance with all New York State Executive Orders and directives of the Commissioner of Health, as directed under New York State Executive Order 202.30, respective to Defendant

  • Copy of all documents relating to any and all suspensions and/or revocations of Defendant's operating certificate by New York State

  • The name and/or identity of any receivers appointed by the New York State Commissioner of Health

  • Copy of any and all violations and/or penalties incurred pursuant to New York State Executive Order 202.30

  • Copy of the results of testing for COVID-19 of Defendant's personnel taken pursuant to New York State Executive Order 202.30 and/or any plans by Defendant pursuant to New York State Executive Order 202.30 for such testing

  • Copy of any and all certifications by Defendant certifying that it is able to properly care for each patient, to which the certification pertains, being transferred from a general hospital

  • Copy of the results of testing for COVID-19 of any and all patients being transferred to Defendant from a general hospital

In these novel times, it may be difficult to establish a "standard of care" from which a defendant nursing home or adult care facility departs. However, any violations of Executive Order 202.30 should at least qualify as some evidence of negligence, and perhaps even a deviation from the standard of care set forth in the Order itself.

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