As numbers climbed at a facility for veterans in New Jersey, the rights of grieving family members fell away
by Ann Neumann
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 Corps 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.
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| Left to right: Nancy
Pike holds a photograph of her father Alois Franko; Susan Vella holds a
photograph of her father Frank Vella; and Keith Prendergrast holds a
photograph of his father William Prendergrast. Photograph: Victor J
Blue/The Guardian
|
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 50,000 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 healthcare 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.
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| Tanya Montuore cries as her husband Robert Montuore comforts her. Photograph: Victor J Blue/The Guardian
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“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.
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.
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| Daria Lisco, left, and Liz Vigren, right, hold photographs of their
father Charles VanderPyle. Photograph: Victor J Blue/The Guardian
|
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, the New Jersey governor, Phil Murphy, enacted an
executive order that granted broad immunity to nursing homes and
healthcare 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.
 |
Shari Davis cries as she holds a photo of her mother, Joan
Williams, who
died at age 86 of Covid-19 at the New Jersey
Veterans Memorial Home at
Menlo Park.
Photograph: Victor J Blue/The Guardian | |
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Gary White, a members of the Marine Corps League Cpl. Kevin J.
Reinhard
Detachment 189, speaks during the protest.
Photograph: Victor J Blue/The
Guardian |
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 longtime 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.”
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Shirley
Suddoth-Lewis,
head of the local AFSCME
union, worked at Menlo
Park for
more than
30 years. Photograph:
Victor J Blue/The Guardian
|
Like several others I spoke with, including Suddoth-Lewis, Osborne
witnessed PPE being removed from staff members’ access. Osborne,
Suddoth-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 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.
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| Veterans and family
members release balloons in honor of those they lost. For some, this was
the only memorial they’d have for their loved ones. Photograph: Victor J
Blue/The Guardian
|
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 non-profit the Economic Hardship Reporting Project
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