NY Nurses Union Sues State, Hospitals Over COVID-19 Safety

By Sarah Jarvis
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Law360 (April 20, 2020, 9:41 PM EDT) -- The New York State Nurses Association on Monday filed three lawsuits in state and federal court, saying that the state Department of Health and two hospitals failed to adequately protect health care workers as they treated an influx of COVID-19 patients.

The union said the New York Department of Health, Montefiore Medical Center in the Bronx and Westchester County Health Care Corp. — which operates the Westchester Medical Center — compromised the health and safety of nurses by providing inadequate equipment, training and working conditions amid the coronavirus pandemic.

"More than seven in 10 of our nurses are reporting exposure to COVID-19, and most are still untested," NYSNA Executive Director Pat Kane said in a statement. "These lawsuits were filed to protect our nurses, our patients and our communities from grossly inadequate and negligent protections. We cannot allow these dangerous practices to continue."

The lawsuits detail a range of allegations, including the rationing of personal protective equipment at the hospitals, not providing testing for nurses, and forcing nurses to work while they have COVID-19 symptoms or are awaiting coronavirus test results.

The suit against the DOH accuses it of doing nothing to enforce a declaration from Gov. Andrew Cuomo's COVID-19 task force that health care workers receive an N95 respiratory mask on a daily basis. That suit also said a DOH directive to health care providers does not allow enough paid sick days for workers who test positive for the coronavirus.

One Montefiore nurse testified in an affidavit that after she began experiencing symptoms of COVID-19, she reported them to the hospital and asked for testing, but was informed the hospital would not test her. She later tested positive for the coronavirus after obtaining a test on her own.

A nurse at Westchester Medical Center testified in another affidavit that she was given just one N95 respirator from the hospital, which she was required to use for a week. She said she was exposed to infectious airborne molecules that could reach her nose and mouth because the respirator was too big.

The state suit against the DOH seeks a declaratory judgment that the agency's return-to-work protocols are not in accordance with the state's paid family leave policies. The suit also seeks an order to ensure adequate personal protection equipment and testing for nurses.

The federal suit against Montefiore seeks an injunction to compel the hospital to take steps to protect the roughly 3,000 nurses NYSNA represents at the center, while the state suit against Westchester Medical Center seeks to redress conditions the union claims threaten imminent death or serious physical harm to the 1,600 nurses it represents there.

NYSNA last week also initiated a grievance under the union's collective bargaining agreement challenging Montefiore's alleged failures, according to the complaint.

"By the time that the grievance will be heard at arbitration and an award issues, it will be too late to remedy the harms caused by [Montefiore's] persistent failure to comply with its contractual obligations, particularly the serious illnesses that the nurses, their patients, and their families have already suffered," the union said in its federal suit.

The union said it also filed a complaint last week with the New York State Department of Labor on behalf of its nurses at Westchester Medical Center, adding that the court now has jurisdiction over the claim because the agency did not act within 48 hours.

The DOH said it can't comment on pending litigation, but Communications Director Jonah Bruno said in a statement that the state "continues to take every step necessary to ensure that health care workers, particularly those who are sampling and providing direct care, have the support and supplies needed to address this unprecedented public health emergency."

WMCHealth said in a statement that the claims in NYSNA's lawsuit against it are wrong.

"Our focus is, and has always been, protecting our workforce, which has been aligned from the outset in treating the most severely ill patients battling COVID-19," WMCHealth said. "NYSNA's lawsuit is irresponsible and a distraction from this work, and a disservice to all who are valiantly caring for these patients every day."

A representative of Montefiore did not immediately respond to a request for comment Monday.

The nurses are represented by Kate M. Swearengen, Joseph J. Vitale, Joshua J. Ellison, Olivia R. Singer and Susan Davis of Cohen Weiss and Simon LLP.

Counsel information for the hospitals and the DOH was not immediately available Monday.

The cases are the New York State Nurses Association v. Montefiore Medical Center, case number 1:20-cv-03122, in the U.S. District Court for the Southern District of New York; the New York State Nurses Association v. Westchester County Health Care Corp. et al., case number 54541/2020, and the New York State Nurses Association v. New York State Department of Health et al., case number unavailable, in the Supreme Court of the State of New York, Westchester County.

--Editing by Adam LoBelia.

For a reprint of this article, please contact reprints@law360.com.

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