By noon on 16 September, more than 100 people had gathered at the end of the long drive that leads to the Menlo Park Veterans’ Memorial Home in New Jersey. Eighteen-inch letters – red, white, and blue – spelling “THANK YOU HEROES” were pushed into the sod beneath a semi-permanent sign that reads “Now accepting job applications” and “SERVING THOSE WHO SERVED”.
Staff members – mostly Black, mostly female – stood to the right of a podium. To the left stood family members holding framed photos of their loved ones, former residents of Menlo Park who had died over the past several hellish months, either in the facility or in a nearby hospital.
Gary White, the no-nonsense, cigar-chewing commandant of the local Marine Corp League – an 80-year-old federal organization and advocacy group for Marine veterans – organized the event. White told the crowd that Menlo Park’s residents had, as service members, “given America a blank check payable up to and including their lives,” but that during the pandemic, “veterans died who never should have.” A week before the protest, White had received calls and emails from family members who were shocked by their loved one’s deaths, who had never even been told their father or grandfather was sick.
“They asked me to do something,” he said.
By late May, there were only 177 residents at Menlo Park, down from 300 in early March. A recent Wall Street Journal investigation shows that many of the dead were never tested for Covid-19, their official cause of death recorded as pneumonia or sepsis. Though the facility’s management maintains that the official death count from Covid-19 is 62, the investigation concluded that 101 residents had died of Covid-19 at Menlo Park since March, the highest single death rate of any nursing home in the country.
At the protest, families and staff cited a gross lack of communication about what was happening inside the facility, a senseless ban of mask-wearing in the early weeks of the pandemic, and a continued effort to cover up the total number of deaths at Menlo Park, as the cause of their attendance. “Negligence is Murder,” read one sign, held by a grieving family member, “Where was their PPE?” Outraged by the mass deaths, at least 35 families and 22 employees have retained lawyers.
The protest was brief, but one family member, White told me, said it was the only memorial they’d had for their grandfather. As people in the crowd wiped their eyes and began to wander back to their cars, staff members gathered around Shirley Suddoth-Lewis, the president of their local union who has worked at Menlo Park since 1984, as she handed out white balloons. When they released them into the air they said in unison the name of their colleague, Monemise Romelus. She had contracted Covid-19 before she was given access to PPE and died in May.
They want accountability. They want transparency. They want justice. But in April, New Jersey passed an immunity law intended to protect nursing home owners from responsibility for Covid-19 deaths, a law that nursing home operators hope will stand in the way of what the bereaved most desire. Despite the fact that nationally more than fifty thousand nursing home residents and 750 staff members have died so far from Covid-19, at least 26 states have passed some form of immunity law that shields long term care facilities and health care providers from Covid-19-related civil negligence lawsuits. A recent article in ABA Journal, a publication of the American Bar Association, states: “Those measures generally bar claims for standard negligence, only allowing claims for harder-to-prove gross negligence, willful misconduct or fraud.”
Immunity laws are often passed by state and federal governments in the event of a crisis. But the decision to protect the nursing home industry, betrays legislators’ – and perhaps society’s – erroneous assumption that elders’ deaths were inevitable, that their lives were worth little or too frail to be saved. Clinicians and advocates alike have countered that proper infection control, long a systemic problem in nursing home care, could have largely mitigated the number of deaths.
“This is simple,” Robert Montuore told me, “if they had just followed standard protocol.” His wife, Tanya stood next to him, holding a photo of her father, former Marine Howard H Cognac Sr, who died at Menlo Park in April.
“Pop” lived with the Montuores and their daughter, Samantha, for 12 years after the death of his wife, Celeste. But when he began to use a mobility chair, the Montuores moved him into room 511 on Eagle wing at Menlo Park in February. The Montuores spoke with him daily, with Tanya joining her father for lunch at Buddy’s, the restaurant in Menlo Park’s “town hall”, almost every day. The last lunch she had with him was on 11 March; the following day the facility notified the Montuores that Menlo Park was closed to visitors. As staff and family gathered for the protest, the Montuores told me about the horror of the next four weeks, as they struggled to get Pop on the phone or to receive reliable updates from Menlo Park staff.
According to a letter the Montuores wrote to their local senator, assemblywoman, and Gary White (who shared it with me, with permission) Pop called them a last time a little after 8pm on 5 April, “hysterical” because management had taken away his mobility chair and put him in a bed without a call button. “His final words were, ‘I’m not going to make it out alive,’” the Montuores wrote. “That was the last conversation we had with him.” Two days later they were told that Cognac was having trouble breathing and had an elevated heart rate, two signs of Covid-19 infection. They begged for a test. “No fever, no test,” they were told repeatedly by staff over the next few days. At one point, a staff member used her personal phone to help Pop speak to his family. Then on 11 April the facility’s nurse practitioner called to tell them that Pop was failing; when they asked if he had Covid, she said no, heart failure.
On the 16th, they called again for an update on Pop’s status. An hour later the nurse practitioner called back to tell them that he was dead.
Several attorneys I spoke with believe that Menlo Park’s lawsuits are the first in a wave that will sweep the country
A few days before the protest, the Montuores found out that Pop’s roommate, Daniel Bartus, had died of Covid-19 on 5 April. At the protest, Gary White called Tanya Montuore up to the microphone to speak. “They were devalued as human beings,” she said of the Menlo Park residents, “and there were countless unnecessary deaths, of my dad and so many others. Why?” She paused to wipe tears from her face. The next day the Montuores sent me two last telephone messages they received from Cognac, found after his death as they put together information for a case against Menlo Park for their lawyer. “Hi T,” Cognac says, explaining that he can’t use the phone very much because his wing is on lockdown. And then his voice breaks. “I’m worried, Honey” he says, and in a whisper, “I think I have one of the [symptoms]. I love you Honey. If anything happens … ” A sob. “I miss you so much.”
The Montuores are only one of dozens of Menlo Park families who are seeking legal accountability for the loss of their loved ones. They fear that state and non-profit defendants will successfully leverage immunity laws to escape legal repercussions; but knowing the pain and suffering of their loss, they can’t imagine the courts won’t also want to know why helpless elders were left to die. Several attorneys I spoke with believe that Menlo Park’s lawsuits are the first in a wave that will sweep the country.
State and federal long-term care advocates loudly opposed immunity laws and claim that the firestorm of Covid-19 that has ravaged long-term care facilities was only made possible by decades of poor management, gross understaffing, debilitating cost cutting, systemic Medicare and Medicaid fraud, poor infection control, and the lack of meaningful federal or state oversight of residents’ care. “Legal liability has always functioned as a safeguard for nursing home residents by incentivizing nursing homes to provide quality care and comply with laws and regulations,” advocates wrote in a letter to the senate judiciary committee on 11 May.
Nonetheless, in New York, a provision was included in the annual budget, passed in April, that provided broad immunity to long term care facilities. Governor Andrew Cuomo has drawn criticism for organizing the transfer of elderly Covid-positive patients from overwhelmed hospitals to nursing facilities. In August, the law was amended and significantly narrowed, removing protections for non-Covid patients.
On 6 May, the Pennsylvania governor Tom Wolf passed an executive order granting immunity. Still, several lawsuits have already been filed in Pennsylvania, including one by the family of Elizabeth Wiley, a housekeeper who had worked at Brighton Rehabilitation and Wellness in Pittsburgh for three decades and died of Covid-19 on 10 May.
Robert Sachs Jr, an attorney in Pennsylvania, where the nursing home deaths have made up between 60 and 70 % of Covid-19 deaths so far, has learned from case inquiries, that many facilities “had the ability and the knowledge of what was coming to protect their populations and didn’t take any steps”. He added that the Department of Health “did an absolutely abysmal job” of helping facilities to prepare for the pandemic.
On 1 April, New Jersey governor Phil Murphy enacted an executive order that granted broad immunity to nursing homes and health care providers and little more than a week later, he also signed a law. But there’s also a federal law, the Prep Act, a pandemic readiness plan passed in 2005 by the George W Bush administration in the wake of the avian influenza, that some facilities hope will provide them with immunity protections.
Yet, some attorneys, like Paul da Costa in New Jersey, who is representing dozens of Menlo Park staff and family members, believe that some claims may not be confined to the Prep Act laws (which address use of medical countermeasures) because they address absence of measures, namely the lack of proper infection control, and the now common accounts of management preventing mask and other PPE use.
In perhaps the first post-Covid decision of its kind, Estate of Maglioli v Andover Subacute Rehab, the courts have shown a willingness to see such cases go ahead. Plaintiffs asked the federal court to remand the case back to the state, against the defendants’ argument that the Prep Act prevented the case’s continuation. The court agreed with the plaintiffs, leaving the decision up to the state court.
Glenn Osborne watched the protest from inside Menlo Park. “What a privilege that was to witness,” he told me by email. I’d met him in person the week before by taking advantage of Menlo Park’s new visitation program, “Operation Rocking Chair”, which allows residents and visitors to spend 15 minutes together, masked, outside, six feet apart. I saw a steady stream of grateful sons and daughters file through the registration pavilion (reservations must be made in advance) the day I visited Osborne. I was his first visitor in six months.
Osborne is a former Marine with service-induced ALS. He speaks in a breathy, halting voice because the disease has restricted his breathing. Osborne, who is kind-faced, laser-focused, and tireless, is the president of the resident’s association. If anything is on the minds of residents at the facility, they call on him. For that reason, staff members told me they worried about Osborne; he’d been writing letters to the facility’s administration and related agencies with various concerns for years. They feared management retaliation against him.
Shirley Suddoth-Lewis, who worked at Menlo Park for more than 30 years, knew from experience; she also feared retaliation from the CEO, Elizabeth Schiff-Heedles, who called an all-staff meeting on 16 March to announce there was no Covid in the building. “She told us, ‘We don’t want anyone to wear masks, the masks will scare the residents,’” Suddoth-Lewis said. “Everybody was in the lunchroom and you could tell people wanted to ask questions, but they were afraid because they might go after you.”
Let’s be candid, we know this is what we call our final mission
But Osborne felt a strong sense of responsibility to his fellow residents and refused to be quiet. In a single-spaced, three-page letter to the Department of Health in August, Osborne addressed the toll that isolation has taken on the residents, leaving them to feel forgotten, disregarded, alone. He asked when outside time will resume, when residents, whose personal belongings were boxed up by the National Guard during the height of the pandemic and stored in the basement, will be returned. And he asked questions regarding management’s actions in April and May. “Why did our CEO purposely prevent employees from wearing PPE?” he wrote.
Osborne told me residents try not to talk about the losses. “Many of the residents were long time friends before they ever entered the facility. The people who lived at Menlo Park were vibrant, leading rich lives as artists, writers, and storytellers,” Osborne said. “You know, this is our home, this was our life. And we knew what we’re here for. Let’s be candid, we know this is what we call our final mission.”
Like several others I spoke with, including Suddoth-Lewis, Osborne witnessed PPE being removed from staff members’ access. Osborne, Sudoth-Lewis, and others also questioned management’s decision to move patients around the facility. Covid-19 positive and Covid-suspicious residents were often moved downstairs, to the dementia ward. One resident of a shared room would be taken downstairs to quarantine while his or her roommate remained. Or patients would be returned to shared rooms when they came back from the hospital. These accounts—and the methodology behind them—bewildered Osborne and many staff members who were unable to ask questions but only follow orders. And if there was a plan to management’s mitigation efforts, the veterans and staff were never informed of it. “Transparency in communication in all areas of operations, especially those that pertain directly to us Veterans, is exceedingly rare,” Osborne wrote.
Perhaps the most chilling part of Osborne’s account is his suspicion that he will be retaliated against. “I know he’s going to be a target. I know it,” Suddoth-Lewis told me on the phone, “Because this administration is so brutal. I mean they have no remorse.” Management has remained opaque and unwilling to consider the input of residents in their care—or even the professional staff employed to provide it. “We continue to feel our lives are at risk and our patient’s rights and dignities are ignored,” Osborne wrote in the letter to the Department of Health.
During my “Operation Rocking Chair” visit a week before the protest, I left some some snacks and toiletries for Osborne on the patio for him. For this, management punished Osborne with a citation. Should he receive a second citation, he will altogether lose the ability to see visitors.
For his dogged outspokenness and commitment to bringing residents’ concerns forward, attorney da Costa has called Osborne a hero. To the staff of Menlo Park, Shirley Suddoth-Lewis is a hero too. She had planned to retire in December, but when she started thinking about a second wave of the pandemic, she retired early, a few weeks before the protest. She told me, “It was my anxiety from working there because certain things to me weren’t done as they should have been.”
In August, state senator Joseph Vitale, chairman of the senate health committee, hosted an online hearing. Gary White, Paul da Costa, and Glenn Osborne all testified about their experiences with Menlo Park. Vitale called for the resignation of the Menlo Park CEO, Elizabeth Schiff-Heedles (who did not return multiple requests for comment). But the spokesman for the New Jersey Department of Military and Veterans Affairs, Kryn Westhoven publicly expressed support for Schiff-Heedles – and the CEOs of the other two veterans’ nursing homes in New Jersey, Paramus, where the official death count is at 81, and Vineland, where the count is three. A total of at least five thousand nursing home residents (veterans’ and civilian combined) have died in New Jersey.
For now it seems little has been done to address the actions of the Menlo Park administration during the height of the pandemic’s first wave – nor to prepare for the potential second wave. Suddoth-Lewis may have retired, but her responsibilities to her fellow union members are not over. As we spoke on the phone one afternoon, three of her great grandchildren playing in the background, texts continued to come in, texts from staff members at Menlo Park. We said goodbye so she could check each one.
This story was supported by the journalism nonprofit the Economic Hardship Reporting Project