marjac cover story in today's New Jersey Law Journal. Legend.
Lol. Seriously though, my quotes apply to our Petition and overall Rule 60 fight. Just because a case is a challenge, does not mean that the case should not be pursued.
6/9/22, 10:33 AM 'State-Created Danger': Lawsuits Blame Gov. Murphy for COVID Deaths in Private Nursing Homes I New Jersey Law Journal New Jersey Law Journal
'State-Created Danger': Lawsuits Blame Gov. Murphy for COVID Deaths in Private Nursing Homes
"Any time you take on a public entity in litigation, it's a big challenge, but that's how the law is advanced. You should turn in your license if you're afraid of a big challenge," plaintiffs lawyer Michael Kasanoff said. By Charles Toutant I June 08, 2022
Will New Jersey be on the hook for COVI D-19 deaths in privately run nursing homes because of its directives in the early days of the pandemic? A handful of suits says the answer is yes.
Gov. Phil Murphy and Health Commissioner Judith Persichilli are named as defendants in a suit filed Tuesdayin U.S. District Court on behalf of a man who died of COVID-19 in 2020 at age 88. The suit says Russell Murray died because of a "state-created danger''-nursing homes such as the one where he lived were unable to cope with the burden of a state directive that said they could not refuse admission to patients being discharged from hospitals who tested positive for COVID-19.
Wednesday's suit, and two similar cases filed in May, blame the Murphy administration for COVID-19 deaths in private nursing homes. They come a few months after the state agreed to a $53 million settlement of suits over the COVI D-19 deaths of residents at two state-run nursing homes for veterans. Republicans have criticized Murphy for his administration's directives on nursing homes, blaming him for the deaths of 8,600 residents and staff due to COVID. His opponent in the 2021 gubernatorial election, Jack Ciattarelli, made the issue a major part of his campaign, even running a television ad to cast blame on Murphy.
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."
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 claimsunder 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."
David Cohen, of Cohen Kolodny Abuse Analytics in Middletown, who also represented some plaintiffs in the $53 million veterans' home case, called Kasanoffs claims against Murphy and Persichilli "a big mountain to claim under the Tort Claims Act." "It certainly is a creative approach but I would be concerned the defense, under the Tort Claims Act, would be problematic," said Cohen, whose practice focuses on nursing home litigation.
The federal civil rights claims help the suit get around the TCA with claims that "nursing home placements were made under color of state law," said Cohen. "He could be on to something there. My guess would be no one else has tried because it's a tough mountain to climb. Kudos to him for trying."
Alayna Alfaro, a spokeswoman for Murphy, and Nancy Kearney, a spokeswoman for Persichilli, declined to comment on the litigation. Merry Heart Assisted Living did not respond to a call about the suit.
Kasanoff said he was retained by the daughter and son-in-law of the decedent in the DeRosa case, who were his classmates at Freehold Township High School. Kasanoff concedes that he faces a challenge suing state government defendants. "Any time you take on a public entity in litigation, it's a big challenge," he said. "But that's how the law is advanced. You should turn in your license if you're afraid of a big challenge."
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