Paul M. da Costa Quoted in NJLJ Article. “‘State-Created Danger’: Lawsuits Blame Gov. Murphy for COVID Deaths in Private Nursing Homes”
As seen in the New Jersey Law Journal
June 8, 2022
By Charles Toutant
What You Need to Know
- A handful of suits says Gov. Phil Murphy and Judith Persichilli, health commissioner, are liable for COVID deaths in privately owned nursing homes.
- The suits claim the state’s policies early in the pandemic that required nursing homes to admit patients being discharged from hospitals who tested positive for COVID-19 were to blame.
- The state could seek to dismiss the litigation under the Tort Claims Act, one observer said.
Not a ‘Hatchet Job on the Governor’
The Murray case and the others—filed by the families of two other nursing home residents who died of COVID, Frances DeRosa and Margaret MacKenzie—were filed by Matawan attorney Michael Kasanoff.
“I’m not political. This is not intended to be a hatchet job on the governor,” said Kasanoff. “The state created the danger because they were warned of the consequences.”
New Jersey Commissioner of Health Judith M. Persichilli. Courtesy photo
The suit says nursing home operators warned state officials that their directive would lead to unnecessary deaths because the elderly have an increased vulnerability to COVID-19.
On a conference call concerning the directive, one nursing home administrator warned Persichilli that people would die because of the directive, according to the complaint.
When Persichilli shared guidelines for separating COVID-infected residents from others, an administrator said the plan would not safely separate those residents and avoid transmissions to others, the suit said.
The day after the conference call, the Department of Health received calls from 99 facilities stating that they did not have enough resources to properly staff or separate patients, the suit said. Within a week, 200 facilities notified the department that they could not accept new admissions, the suit said.
After New Jersey issued its directive, the suit said, three organizations representing the long-term care industry said the policy was “a short-term and short-sighted solution that will only add to the surge in COVID-19 patients that require hospital care. Based upon what we currently know about how this virus can spread in institutional settings, the hospitalizations and case fatality rate, this action by a state will put the many frail and older adults who reside in nursing homes at risk.” These experts called for creation of separate settings for recovering COVID patients, such as large field hospitals, dormitories, hotels and closed nursing homes, the suit said.
Murphy and Persichilli can’t claim there was no alternative to their directive, the suit claims.
Kasanoff brings claims for federal civil rights violations as well as claims under the New Jersey Civil Rights Act, the New Jersey Nursing Home Resident Rights Act. He brings claims of gross negligence and wrongful death against the nursing home where Murray spent his final days, Merry Heart Assisted Living in Succasunna.
The state directive on readmission of COVID-19 patients from hospitals to nursing homes “is a relevant issue in all of these COVID nursing home cases, and certainly the nursing homes themselves had an independent duty to determine if they were capable of appropriately isolating these returning residents so as to not needlessly endanger their existing resident population,” said Paul da Costa, an attorney who represented many of the plaintiffs in the suit that resulted in the $53 million settlement on behalf of residents at two state homes for veterans in 2021.
‘Big Challenge’
Speaking of Kasanoff’s latest suit, da Costa, of Snyder Sarno D’Aniello Maceri & da Costa in Roseland, said, “What is alleged in this complaint at some point down the road should be more fully investigated by the legislature, since, at minimum, there are some remaining questions revolving around this issue of readmission of COVID patients to nursing homes.”
Click here to view the article in its entirety on the New Jersey Law Journal website. Subscription required.
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If you or a loved one have suffered a preventable injury or death after contracting any viral or epidemiological outbreak at long-term care facilities, please contact Paul M. da Costa, Esq. of Snyder Sarno D’Aniello Maceri & da Costa LLC. Mr. da Costa heads the medical malpractice and personal injury department and has a proven track record of successfully holding negligent operators accountable. (See Menlo Park Memorial Veterans Home Covid-19 outbreak). Our hardworking and dedicated attorneys will review your claim and help you navigate the legal options that may be available to you. You can schedule a consultation via email (pdacosta@sarnolawfirm.com) or call 973-274-5200.
