New lawsuits over nursing home COVID deaths claim ‘state-created danger’

The families of two women who died after catching COVID in the private nursing homes where they lived have sued state officials, saying the state ignored repeated warnings in the pandemic’s first weeks that its controversial approach to containing COVID in long-term care facilities would be deadly.

The lawsuits come nearly five months after the state agreed to pay almost $53 million to settle claims it botched its response to the COVID outbreak in state-run veterans’ homes.

The new lawsuits — filed late last month in federal court — accuse Gov. Phil Murphy and Health Commissioner Judith Persichilli of violating nursing home residents’ civil rights and creating dangerous conditions in homes through policies they implemented under Murphy’s executive order 103.

“Through the directive, the nursing homes were thrown under the bus,” attorney Michael S. Kasanoff wrote in one complaint.

That complaint criticizes state officials for requiring facilities to admit people who tested positive, refusing to require hospitals to test “medically stable” patients they transferred to nursing homes, and failing to adequately distribute face masks, gloves, and other personal protective equipment in long-term care facilities in the pandemic’s early days.

Those policies fueled the virus’ spread, the complaints charge.

Officials also ignored providers’ pleas that they didn’t have enough resources to isolate sick residents or otherwise protect residents and staff as directed, the complaints say.

Murphy and Persichilli are liable under the “state-created danger doctrine,” Kasanoff wrote. That legal doctrine enables citizens to pursue remedies when the government — responsible for protecting the public — instead takes actions that endanger it.

A spokesman for the Attorney General’s Office, which handles lawsuits against the state, declined to comment.

As devastating as COVID was in New Jersey, few places felt its deadly impact as much as nursing homes, where the virus tore through the populations most vulnerable to it, the elderly and those with chronic health conditions.

More than 9,000 residents and staff in long-term care facilities in New Jersey have died of COVID since the pandemic started, accounting for 27% of all COVID deaths statewide, data shows. Almost 88,000 more residents and staff caught it but survived, the data shows.

Murphy has called the nursing home deaths a “tragedy within the tragedy” and has pledged to investigate what went wrong. A consultant hired in 2020 to identify weaknesses in the nursing home system recommended stronger oversight, additional funding, and more.

The virus’ toll in such facilities sparked such widespread outcry that both state and federal authorities are investigating.

In an interview with the New Jersey Monitor, Kasanoff said he’s eager for answers too.

“I’m not trying to be a Monday-morning quarterback, but they had alternatives,” Kasanoff said. “There were dormitories, hotels, other shuttered nursing homes, field hospitals they could have set up, because the proper policy, even then, was to separate the healthy people from the COVID people.”

Kasanoff sued on behalf of the families of Frances D. DeRosa, 73, who died April 27, 2020, a week after doctors diagnosed her with COVID, and Margaret MacKenzie, 93, who died May 9, 2020, a week after her diagnosis.

MacKenzie was living at the Venetian Care & Rehabilitation Center in South Amboy. The center is not listed as a defendant.

DeRosa was a resident at the Gateway Care Center in Eatontown. Her family named the center and its owner and administrator at the time as defendants because staff there counseled DeRosa’s daughter in March 2020 not to move her home, failed to wear protective gear, attributed DeRosa’s early symptoms to “seasonal allergies,” delayed testing her for COVID, and opened DeRosa’s mail and withheld her stimulus check, according to the lawsuit.

A woman who answered the phone at Gateway declined to comment.

New Jersey in December agreed to pay $52.9 million to relatives of 119 people who lived in state-run veterans’ homes and who died of COVID.

At a subsequent weekly briefing, Murphy called the settlement “a step in the right direction of healing and resolution.”

Kasanoff said that’s his goal in the two new lawsuits.

“We’re seeking exactly what the governor said — healing and resolution,” he said. “These elderly people died alone and scared, and it didn’t have to be that way.”