Medical Malpractice

New York jurisprudence is clear that liability insurers owe their insureds the duty of good faith and fair dealing to act in their insureds best interests in defending and settling claims. This duty arises as implied covenants of the contract between the insurer and insured and includes the duty of thorough investigation of all claims and defenses that may be asserted for or against the insured. New York law does not generally recognize a tort action based on insurer bad faith. However, where the insurer fails to settle an action within the policy limits resulting in a judgement against the insured for a sum in excess of the policy limits the insured may bring a direct action against the insurer for bad faith to recover the excess judgement above the policy limits. This is premised on the fact that the insurer has complete control over all claims handling and defenses asserted on behalf of the insured during the litigation proceedings.
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Nursing home aides — the staff members who provide the most direct care to residents — were the least likely to be fully vaccinated against the coronavirus by mid-July, according to a new analysis of U.S. facilities.

The study underscores the influence that President Biden’s new federal mandate for all health care workers may have on populations like the elderly in nursing homes who are vulnerable to coronavirus infections, experts say.

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July 19, 2021 - The federal Open Notes Rule (the "Rule") implements a portion of the federal 21st Century Cures Act (Cures Act) related to "information blocking." It specifies that clinical notes are among electronic health information (EHI) that must not be "blocked." The notes must be available free of charge to patients and their representatives. Such access is through a patient portal or health applications on a smart device. The Rule significantly changes the way patient information will be shared and effectively mandates a Cloud for EHI.
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WASHINGTON (AP) — Deaths among Medicare patients in nursing homes soared by 32% last year, with two devastating spikes eight months apart, a government watchdog reported Tuesday in the most comprehensive look yet at the ravages of COVID-19 among its most vulnerable victims.

The report from the inspector general of the Department of Health and Human Services found that about 4 in 10 Medicare recipients in nursing homes had or likely had COVID-19 in 2020, and that deaths overall jumped by 169,291 from the previous year, before the coronavirus appeared.

“We knew this was going to be bad, but I don’t think even those of us who work in this area thought it was going to be this bad,” said Harvard health policy professor David Grabowski, a nationally recognized expert on long-term care, who reviewed the report for The Associated Press.

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New York’s powerful hospital groups have taken steps to get a federal COVID-19 lawsuit against a Long Island nursing home tossed — calling it a potentially precedent-setting case that could have damaging, “far-ranging consequences” for the industry.

The Greater New York Hospital Association and NYS Health Care Association filed papers in Brooklyn federal court on Friday challenging the suit brought by Vivian Zayas, whose mom died of coronavirus last year following her stay at Our Lady of Consolation.

Zayas, who sued last August, is seeking to hold the West Islip nursing home liable in her mom’s death, saying it failed to take adequate preventative measures to keep the killer bug from spreading.

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Jeannie Wells had hoped that regular visits would resume at her elderly mother’s New York nursing home once all the residents were fully vaccinated against COVID-19.

Around Easter, her wish finally came true, and she was able to hold the 93-year-old’s hand more than a year after bringing her mother to the facility for rehabilitation for a fractured hip and knee.

But that reunion was short-lived. Visits were quickly stopped for about six weeks after an employee tested positive for COVID, and Wells said visits are still far from normal even when there haven’t been outbreaks.

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Huge numbers of employees at New York nursing homes still haven’t been vaccinated against COVID-19 — with more than 60 percent of staffers at some city facilities refusing to get the jab, state data shows.

The vaccination rates among workers drastically trail that of vulnerable residents at the same facilities, sparking outrage from advocates who warn it could impede their ability to visit loved ones in the homes.

“If staffers choose not to get the vaccine, they should find another line of work,” said Vivian Zayas, founder of Voices for Seniors, whose mom, Ana Martinez, died after contracting COVID-19 at a Long Island nursing home last year.

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Twelve years ago, the U.S. government introduced a powerful new tool to help people make a wrenching decision: which nursing home to choose for loved ones at their most vulnerable. Using a simple star rating — one being the worst, five the best — the system promised to distill reams of information and transform an emotional process into one based on objective, government-blessed metrics.

The star system quickly became ubiquitous, a popular way for consumers to educate themselves and for nursing homes to attract new customers.
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Troops have filed $2.16 billion in medical malpractice claims under a 2019 law that required a system of compensation for victims, according to the military services.

The total, which hasn’t been previously reported, represents 227 cases that have yet to be adjudicated. The Army, which is the largest branch of the military, reported $845 million in malpractice claims. The Air Force reported $530 million, while the Navy and Marine Corps reported a combined total of $781 million.
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NEW YORK (AP) — More than 9,000 recovering coronavirus patients in New York state were released from hospitals into nursing homes early in the pandemic under a controversial directive that was scrapped amid criticism it accelerated outbreaks, according to new records obtained by The Associated Press.

The new number of 9,056 recovering patients sent to hundreds of nursing homes is more than 40% higher than what the state health department previously released. And it raises new questions as to whether a March 25 directive from Gov. Andrew Cuomo’s administration helped spread sickness and death among residents, a charge the state disputes.

“The lack of transparency and the meting out of bits of important data has undermined our ability to both recognize the scope and severity of what’s going on” and address it, said Richard Mollot, the executive director of the Long Term Care Community Coalition, a residents advocacy group.
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