A rising tide of civil lawsuits related to deaths from Covid-19 are being filed in New York against not only top state officials, but also nursing homes, as family members seek legal recourse.

According to a report in the Times-Union newspaper, these cases have proceeded slowly as pre-trial arguments have focused, in part, on whether state government officials and the nursing homes are shielded by immunity from any liability.

“The lawsuits against nursing homes assert that the responsibility to care for residents fell on those facilities, even as [Gov. Andrew Cuomo’s] directive had temporarily sent patients with Covid-19 or who were untested for the disease back into the nursing homes,” the Times-Union article said.

Cuomo and his staff are accused of negligence in some of the lawsuits in issuing the controversial directive that prevented residents from being denied admission based solely on their Covid diagnosis in March 2020 while nursing homes were prohibited from testing stable, hospitalized residents. Critics argue that the policy led to rampant infection within highly vulnerable populations.

The coronavirus burdened nursing homes across New York, killing more than 15,000 people.

Aside from lawsuits blaming state officials, lawsuits against nursing homes include three against the Teresian House Center for the Elderly in Albany. The Grand Rehabilitation and Nursing at Barnwell in Columbia County and The Villages of Orleans are also being sued, among others.

Teresian House, which saw high numbers of deaths and infections early in the pandemic, was investigated by the New York State Department of Health for its handling of the virus.

In a class-action lawsuit brought against The Villages of Orleans Health and Rehabilitation Center in Orleans County, attorney Michael C. Scinta told the Times-Union that despite the misdirected state policy, nursing homes were still responsible for rejecting admission to infected residents if they could not safely isolate them from others. The Villages of Orleans is also being sued by the state attorney general’s office for allegations that its residents were improperly drugged, subjected to inhumane conditions and, in some instances, died as a result of the mistreatment, the story notes.

“At the end of the day, a nursing home is required to not accept patients they could not care for,” Scinta said in the article. “That’s the bottom line.”

Gov. Cuomo’s directive – later rescinded – also faced scrutiny in an investigation by the U.S. Department of Justice (DOJ) into his administration’s handling of the spread of Coronavirus in nursing homes. An audit in 2022 found that data released by the state Department of Health “misled the public” and undercounted deaths in nursing homes.

Attorneys in the federal cases are seeking class-action status in order to represent the survivors of others who died in New York nursing homes during the pandemic, but it is unclear whether the attorneys will obtain the class-action status.

Attorneys acknowledged that it was difficult to estimate with certainty how many Covid-positive patients were sent to nursing homes, in part because testing had been limited.

Legal experts told the Times-Union that the lawsuits filed against nursing homes for their role in the spread of the Coronavirus could be more viable given the qualified immunity rules.

However, attorneys for nursing home operators contend they have some immunity from civil lawsuits and criminal prosecutions regarding their handling of the pandemic due to a state budget provision passed in April 2020, even though the immunity measure was later rolled back and eventually repealed in March 2021, the Times-Union noted.

An appellate court is expected to hear arguments in the fall for the case against Pine Haven Nursing and Rehabilitation Center on whether immunity still applies to nursing homes for the period the original immunity law was in place — or whether it was retroactively taken away when the protection was repealed a year later.

One appellate court in Albany has already ruled in a similar case that the immunity continued to apply to nursing homes during the period the law was in place, overlapping with the height of the pandemic’s impact on nursing home infections and deaths, the Times-Union story said.

In the midst of all this, some attorneys have also pushed the New York Supreme Court cases filed against nursing homes to be consolidated because of the similar legal questions – a move opposed by nursing homes. 

Many lawsuits against nursing homes are proceeding slowly as precedent develops, the Times-Union noted.