Kadeem Wolliaston (Associate-Albany, NY) and Lori Semlies (Partner-White Plains, NY) successfully collaborated in defending a wrongful death action against a nursing home involving claims for negligence, gross negligence, conscious pain and suffering, and alleged failures relating to staffing, resident care, dignity, comfort, and COVID-19 protocols. The estate claimed that the facility failed to properly care for a resident during his admission and that those alleged failures contributed to his death. Following discovery, the plaintiff voluntarily dismissed the action.
The medical records reflected that the resident tested positive for COVID-19, was unvaccinated, and repeatedly declined available treatment, including monoclonal antibodies, antivirals, and transfer to the hospital. The records further showed that the resident wanted comfort care and was making his own treatment decisions. At deposition, the plaintiff confirmed that the resident was alert, oriented, and capable of making his own decisions. She also acknowledged that he had longstanding personal views regarding medical treatment, was unlikely to change his mind, and that no one would have been able to convince him to accept additional COVID-19 treatment.
The deposition also revealed that the plaintiff had maintained handwritten notes during the resident’s admission. A further deposition was pursued to address those notes directly. That testimony confirmed that the notes did not document complaints regarding the facility’s care but instead contained general questions for staff regarding food intake, comfort care medication, and the resident’s condition. The notes also confirmed that the resident declined additional treatment and that this was consistent with his wishes.
Importantly, the plaintiff ultimately testified that the lawsuit was not based on the facility’s handling of COVID-19. Rather, her concerns related to the resident’s surroundings, including cleanliness, hydration, and therapy delays. That admission, combined with the medical records and prior testimony, confirmed that there was no evidence that the resident’s death was caused by any failure to provide COVID-19 treatment or prevention measures.
The plaintiff voluntarily dismissed the action rather than proceed toward summary judgment. The result reinforces an important lesson in litigation: favorable records are only part of the defense. The testimony must be developed in a way that confirms the record, narrows the issues, and prevents generalized allegations from surviving discovery. A well-prepared deposition can be the difference between defending a claim through motion practice and positioning the case for dismissal.