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Will Medical Workers' Families Have Wrongful Death Claims for Lack of PPE in NYC?

Among the hundreds of thousands of Americans who have died from the COVID-19 coronavirus are frontline medical workers, many of whom became ill because of a lack of personal protective equipment, or PPE.

Groups that represent health care workers and the families of deceased medical workers are responding by looking to the civil legal system for redress. The New York State Nurses Association has filed lawsuits against the N.Y. state department of health and two hospitals for alleged failure to provide frontline medical workers with adequate protective equipment. The family of a Kansas City, Missouri, hospital nurse who died of the coronavirus is filing for workers’ compensation death benefits, saying she contracted COVID-19 at work.

Wrongful death lawsuits and workplace death claims will undoubtedly be among a wave of COVID-19 litigation that is already starting to build. One database cites more than 2,600 coronavirus-related lawsuits filed this year.

Has a member of your family died after working on the front lines of medical care to fight the coronavirus in New York? A New York City wrongful death attorney at David Resnick & Associates, P.C., can move quickly to protect your legal right to seek compensation. During this time of pandemic, our New York personal injury law firm in midtown Manhattan remains dedicated to helping families seek full compensation to rebuild their lives after devastating losses.

Call us at (212) 279-2000 or fill out our online contact form to set up a free initial evaluation of your legal options over the loss of your loved one.

NYC Medical Workers Face PPE Shortagespersonal protective equipment

In early March, as the outbreak of COVID-19 evolved into a global pandemic, the World Health Organization (WHO) warned of a severe disruption to the global supply of personal protective equipment (PPE) that was “putting lives at risk.”

“Shortages are leaving doctors, nurses and other frontline workers dangerously ill-equipped to care for COVID-19 patients, due to limited access to supplies such as gloves, medical masks, respirators, goggles, face shields, gowns, and aprons,” the WHO said.

Despite efforts by WHO, the U.S. government, individual U.S. states and others to obtain PPE for medical workers dealing with coronavirus patients, shortages continued.

In March and into April, Covid-19 cases spiked quickly in several hotspots in the U.S., such as New York City, putting stress on stocks of personal protective equipment (PPE) for healthcare workers. The PPE shortage has put frontline medical workers at risk of contracting COVID-19, business intelligence company GlobalData said.

“GlobalData expects the global demand for hospital PPE to remain high over the next few months as manufacturers scramble to generate enough product to meet this new demand,” the May 21 report says.

Kelley Cabrera, an emergency room nurse at Jacobi Medical Center in the Bronx, told CBS News’ “60 Minutes” in mid-April there were not enough masks, face shields or gowns in the hospital full of critically ill patients.

Dr. Sheldon Teperman, chief trauma surgeon at Jacobi Medical Center, told CBS correspondent Bill Whitaker, “my boss, my second in command, my nephew, my senior nurse, second senior nurse” have all fallen ill from COVID-19. “And some of them are quite sick,” he added.

A collaboration between Kaiser Health News and The Guardian newspaper called “Lost on the Frontline” calculates that nearly 600 frontline health care workers had died of COVID-19 as of June 6. “Many were forced to reuse masks countless times amid widespread equipment shortages,” the report says.

The Kaiser Health project is memorializing healthcare workers who have died from COVID-19 contracted while caring for patients during the pandemic. Among them is Thomas Soto, 59, a radiology clerk at Woodhull Medical Center in Brooklyn who “faced delays in accessing protective gear, including a mask, even as the hospital where he worked was overwhelmed with COVID-19 patients.”

A federal lawsuit filed April 20 by the New York State Nurses Association (NYSNA) against Montefiore Medical Center accused the Bronx hospital of failing to provide frontline health care workers with adequate protective gear, according to WABC. “Nurses are treating fragile coronavirus patients with inadequate masks, gowns and space to don and doff those items,” the lawsuit said. The lawsuit also claimed that nurses were being forced to work while sick with COVID-19 symptoms and given inadequate time to recover or quarantine.

However, a Manhattan federal judge denied the NYSNA’s request to force the hospital to provide a sufficient amount of PPE. U.S. District Judge Jesse Furman said the court couldn’t act but urged both sides to find a resolution.

The NYSNA has also sued the N.Y. state Department of Health, arguing the agency failed to ensure nurses were provided minimal PPE while caring for COVID-19 patients. The NYSNA also sued the Westchester Medical Center for allegedly creating workplace hazards by rationing N95 respirators and gowns. The lawsuits were filed in state court.

Healthcare Workers’ Rights and Coronavirus-Related Wrongful Death Claims

There are generally two routes to recovering compensation for the unjust death of a family member:

  • A wrongful death claim under New York personal injury law
  • Seeking workers’ compensation death benefits by establishing that the deceased died because of an illness or injury contracted while on the job or arising out of the course of employment.

Typically, an employer cannot be sued for an employee’s death caused by an occupational illness or injury. That is the contract of workers’ compensation: the employer provides workers’ comp insurance in exchange for protection from lawsuits for their allegedly negligent actions that harm employees.

Families of the deceased medical workers would have to show that the employer’s failure to provide adequate PPE was intentional, reckless or amounted to gross negligence for a wrongful death claim to move forward. The fact that shortages of PPE were widespread would be a defense against claims of intentionally denying PPE to employees or liability for failure to provide PPE.

More likely to succeed is a workers’ compensation death benefit claim. The New York Workers’ Compensation Board (WCB) has published a COVID-19 Q&A fact sheet stating, “Yes. Depending on the facts, you may receive workers’ compensation benefits in New York State due to COVID-19 exposure.”

The WCB fact sheet points out that “individuals who work in an environment where exposure risks are significantly higher are more likely to have payable COVID-19 claims. … This includes health care workers.”

New York workers’ compensation benefits provide:

  • Payment for a worker’s medical treatment for a work-related illness or injury
  • Wage replacement payments
  • Benefits to an employee’s surviving dependents in the event of death
  • Reimbursement of funeral expenses up to $12,500 in New York City, Nassau, Suffolk, Rockland and Westchester counties, and up to $10,500 in the other counties of New York.

Contact a New York Workers’ Compensation Attorney

Litigation over COVID-19 deaths is expected to be massive in the coming months and years. Insurance companies that pay these claims stand to lose billions of dollars. Insurance carriers will be compelled to fight claims when they have any opportunity to do so, including workers’ compensation claims.

An experienced personal injury attorney from David Resnick & Associates can help you evaluate the best options for pursuing a claim that your loved one’s exposure to COVID-19 was job-related and gathering evidence to show the prevalence of COVID-19 in your loved one’s work environment.

At David Resnick & Associates, P.C., our NYC wrongful death attorneys are ready to represent family members whose loved ones lost their lives due to occupational exposure to COVID-19. We are experienced with these types of difficult cases and can use our legal knowledge to fight any disputes your claim faces.

Call us at (212) 279-2000 or contact us online today to learn more about how we can help.

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