​Emily Fernandez (Partner-White Plains, NY), Christopher Peticca (Associate-White Plains, NY), and Nicole Holland (Of Counsel-White Plains, NY) obtained dismissal of a wrongful death case on behalf of nursing home client based on COVID-19 immunity pursuant to the EDTPA. The action involved claims of medical malpractice and nursing home negligence in the care and treatment rendered to the plaintiff’s decedent allegedly resulting in COVID-19 infection and death. We drafted a motion to dismiss arguing that the medical records and policies implemented by the facility in response to the COVID-19 pandemic established that the decedent’s care was impacted by the pandemic, thus triggering immunity provided by the Emergency or Disaster Treatment Protection Act (EDTPA). The motion further argued that no exception to the EDTPA applied because the plaintiff failed to properly plead allegations of gross negligence, recklessness, and willfulness, as such claims were conclusory and not sufficiently distinct from the underlying negligence claims. In opposition, the plaintiff argued that we failed to conclusively establish whether the decedent’s care was in fact impacted by the pandemic and that further discovery was needed to meet that burden. The plaintiff also argued that claims of gross negligence, recklessness, and willfulness provided an exception for the EDTPA and required the motion to be denied. However, on reply, based in part on an analysis of the same case law that plaintiff submitted in opposition, we established that plaintiff’s argument was flawed and that we had indeed met the standard for EDTPA immunity in a nursing home negligence case. Specifically, we established that the plaintiff’s conclusory claims of recklessness were insufficient to provide an exception to the EDTPA and that medical records and relevant COVID-19-related policies proved that the treatment at issue was impacted by the pandemic. After oral argument on the motion in Supreme Court, Kings County, the case was dismissed in its entirety.

Eugene Boulé (Partner-New York, NY) and Elizabeth Scoditti (Associate-New York, NY) successfully defended New York's largest health care provider in a premises liability action in Richmond County Supreme Court. The jury returned a verdict in favor of a Staten Island hospital following a one-week trial. The plaintiff claimed she seriously injured herself when she was forced to walk on an uneven, 12-inch wide strip of concrete where no signs or barricades were present to prevent pedestrian access. She further alleged that this strip of concrete was similar in color to the adjacent walkway, thereby appearing to be an extension of the walkway and that the hospital failed to take any measures to ensure this area was safe. Gene and Elizabeth argued that no reasonable person would assume the 12-inch strip was a walkway, and therefore it was not foreseeable that the plaintiff or anyone else would have walked on it. They also presented the jury with other sensible routes the plaintiff could have taken if she were acting reasonably. The jury concluded that the plaintiff failed to meet her burden of proof with credible evidence and found no negligence on the part of the hospital. The settlement demand to the hospital was never less than $1.25 million throughout the trial.

Andrew Holland (Of Counsel-Houston) obtained a unanimous defense verdict in Ulster County, New York, Supreme Court for an assisted-living facility after a five-day jury trial. The firm’s client operates an adult care facility with a memory care unit that must be secured to prevent the residents from leaving. The plaintiff’s decedent, a long-time resident, had advanced Alzheimer’s disease but was physically capable and ambulatory. The resident was seated in a chair that had caster wheels on the front feet to assist with mobility, but after he stood up, he fell, and the chair rolled backwards, according to the incident report, and he sustained a hip fracture requiring nail fixation surgery. After his hospitalization for the surgery, the resident was transferred into skilled nursing care, confined to a wheelchair and died six months later. The plaintiff called a Registered Nurse as her liability expert, who claimed that these chairs are dangerous because residents with Alzheimer’s and dementia forget that the wheels are there, creating a safety hazard. We called a mechanical engineer who performed a forensic analysis of an exemplar chair with wheels, as well as one without wheels, and found the slide characteristics and rotational balancing points to be virtually the same. We also called a physician board-certified in internal medicine and specializing in geriatric medicine, who testified that not only are these chairs acceptable under the standard of care, but the wheels are actually a safety feature insofar as they allow residents to move chairs independently while diminishing the risk of the user tipping over or sliding out from the chair. He believed it was more likely that the resident lost his balance or felt lightheaded after rising and fell backward, pushing the chair back. Lastly, we emphasized the fact that not a single witness put forth any evidence that a fall had ever occurred because a chair with mobility-assistance wheels rolled out, as the plaintiff theorized. The jury reached a unanimous defense verdict within 25 minutes of commencing deliberations.