New York’s Litigation Coordinating Panel (the “Panel”) granted plaintiffs’ request to establish a coordinated proceeding for COVID-19 cases against nursing homes, skilled nursing facilities, and similar healthcare facilities.  Although the venue has not yet been decided, the panel determined that cases will be coordinated for pre-trial proceedings before a single judge. In our prior legal alert, we discussed plaintiffs’ Motion for Coordination (“Application”) pursuant to 22 NYCRR § 202.69 requesting coordination by the Panel and transfer of several litigations “against nursing homes/health care facilities related to their response to the COVID-19 pandemic” pending in counties throughout New York state to Kings County Supreme Court for pre-trial coordination. The Application included 19 cases already pending, but also requested coordination for all future cases with similar claims.

On August 4, 2022, the Panel issued its decision and order, finding that “some degree of coordination of these cases is appropriate,” but the parameters and venue are yet to be determined.   The Panel stayed all 19 cases identified in the Application, and any similar cases filed in the Supreme Court of the State of New York including, but not limited to, pretrial motions and discovery pending a final Order of Coordination from the Panel.

The Panel determined the cases involve plaintiffs’ claims of malfeasance against nursing homes, skilled nursing facilities, and similar healthcare facilities alleging violations of New York’s Public Health Law, negligence, gross negligence, and malpractice in defendants’ responses to the COVID-19 pandemic.  Despite the absence of common parties, one of the factors considered in determining if coordination is appropriate, the Panel found the cases present common questions of fact and law that are important to the determination of their claims.  Specifically, each case centers around defendants’ alleged failure to comply with governmental statutes, regulations, and guidance for protecting and caring for their patients. 

One pertinent common issue discussed in the Panel’s decision is whether the repeal of the Emergency or Disaster Treatment Protection Act (“EDTPA”), and the immunity under the EDTPA, was retroactive, and thus there is no immunity for defendants.  This is a hotly debated issue in these COVID-19 cases, and the Panel noted that the retroactive application issue is already pending before the Appellate Divisions of the Second, Third, and Fourth Departments, the latter of which has oral argument scheduled for September 13, 2022 (Ruth v. Elderwood at Amherst, CA 22-00069). Coordination and a stay of all trial court motions to dismiss on EDTPA immunity grounds would allow the Appellate Divisions to issue rulings and avoid duplicative or inconsistent decisions in the trial courts. 

Similarly, several New York state cases have been removed to federal court citing subject matter jurisdiction, preemption, and immunities under the Public Readiness and Emergency Preparedness Act (the “PREP Act”).  Many of the cases removed to federal court were remanded back to state court, but several appeals of the remand order are pending before the Second Circuit Court of Appeals.  Similar to the issues associated with the EDTPA, coordination will allow the PREP Act-related issues to be addressed by the Second Circuit and avoid unnecessary removals and more remand orders. 

Although the Application was granted, the Panel left several important issues undetermined. First and foremost, the Panel declined to select a venue for the coordinated proceeding.  Although plaintiffs requested Kings County be selected, the Panel noted that none of the 19 cases sought to be coordinated were brought in Kings County; therefore, Kings County “may neither be fair nor expedient.”  The Panel acknowledged that many similar cases have been filed in counties across the state, and that a more central New York county may make more sense to venue coordination.  It is also not clear from the Panel’s decision whether a COVID-19 diagnosis is a prerequisite for coordination, or if cases involving other alleged injuries sustained at nursing homes, skilled nursing facilities, or other similar healthcare facilities during the COVID-19 pandemic will also be coordinated.  At this time it does not appear that any cases against adult care homes / assisted living facilities are subject to the coordination, but there is always a risk of inappropriate or frivolous filings when consolidation occurs.  Plaintiffs may also down the line seek to expand the definition of what constitutes  “similar healthcare facilities” in the Panel’s decision in order to broaden the scope of cases they can file in a coordinated fashion.

The Panel scheduled a virtual conference for September 8, 2022 to determine the parameters and venue of coordination, at which time the Panel will hear arguments from several firms representing plaintiffs and defendants on these issues.  We are closely monitoring the docket for the Panel’s final Order of Coordination, and will continue to report on new developments as COVID-19 litigation coordination will greatly impact the nursing home and elder care industries in New York.

For any questions about this topic, please do not hesitate to contact Abbie Eliasberg Fuchs, Kelly Jones Howell, David J. Dino, Andre Major, or the Harris Beach attorney with whom you typically work.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, New York City, Rochester, Saratoga Springs, Syracuse, Uniondale and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.