Survivors of more than 100 veterans who died or were sickened at a public veterans home in Queens, NY, are suing the state Department of Health over its failure to act “timely” to protect residents from a deadly COVID-19 outbreak or implement “basic” infection control practices.

The class action suit, filed Nov. 4 in US District Court for the Eastern District of New York, alleges the state acted with “deliberate indifference, palpable through their shocking actions and glaring omissions” in the case of the New York State Veterans Home at St. Albans (pictured).

The plaintiffs claim the 250-bed nursing home became an “infection hotspot for its veterans/residents who were unnecessarily exposed to, and infected with, the deadly SARS-CoV-2 virus … and ultimately became a death sentence for 100 of our nation’s veterans.”

In total, more than 350 residents and staff tested positive for COVID at the facility, according to the lawsuit, which was reviewed by McKnight’s Long-Term Care News Monday.

Deadly, large-scale COVID outbreaks at at least three other state-run vets’ homes have led to some of the largest pandemic settlements seen so far. Last year, Massachusetts resolved a class-action lawsuit brought by the families of veterans at the Holyoke Soldiers’ Home for $56 million. In New Jersey, state officials agreed to pay $52.9 million to families of 119 residents at veterans facilities in Menlo Park and Paramus. Families had accused administrators at all three of facilities of not adopting proper infection prevention measures when the pandemic began.

In this case, lawyers for the lead plaintiffs lean on a recent Supreme Court ruling in Health and Hospital Corp. of Marion County et al. v. Talveski, which cleared the way for civil rights cases to be brought against publicly owned nursing homes, even when those facilities offer recourse through federal or state regulatory avenues.

“Residents of the State Veterans Homes have a Fourteenth Amendment right to conditions of reasonable care and safety and that the ongoing failures to implement basic infection control protocols and provide adequate medical care to the State Veterans Homes’ residents violates the constitutional rights of their residents,” referring the equal protection amendment, which underpins many civil rights cases. “NYS-VH failed to ensure that their veterans’ home implement basic infection control practices, provide adequate medical care, and have competent leadership and oversight.”

‘Gross’ failure alleged

The class action has been brought by survivors of James Hutcherson and Robert A. Loria, two veterans who died because of COVID-19 in April 2020. Neither man was hospitalized for his COVID case, and attorneys allege staff at the veterans home was not care planning to protect residents such as Hutcherson and Loria from COVID, even as the virus was beginning to erupt across the US.

A public information officer for the New York State Department of Health told McKnight’s Monday it does not comment on pending litigation.

“This class action is brought because Defendant NYS-VH patently and grossly failed to be steward of the well-being of our nation’s and state’s veterans, by failing to timely act to protect their veterans/residents from exposure to a deadly COVID-19 outbreak in their facility, depriving the named Plaintiffs and others similarly situated individuals of rights secured by federal law and the Constitution of the United States of America,” attorneys for the plaintiffs wrote.

They want to certify a class of similarly situated “elderly, disabled, and vulnerable patients” (or their estates), including any resident who contracted COVID while at the home after March 1, 2020. Damages were not specified in the initial filing.