Montefiore building

Ten lawsuits have been filed naming Menorah Park, Montefiore and its former administrator, Ariel Hyman, as defendants following the deaths of residents who had COVID-19.

While the first wrongful death, nursing home neglect and/or medical malpractice lawsuit was filed Dec. 15, 2020, as the Cleveland Jewish News previously reported, nine have been filed in recent days in Cuyahoga County Court of Common Pleas.

Some of the cases were filed on behalf of residents who contracted COVID-19 at Montefiore prior to Oct. 13, 2020, the date of an alleged COVID-19 testing falsification, which was self-reported to federal and state regulatory agencies. Beachwood nursing homes Menorah Park and Montefiore affiliated July 1, 2020.

The timing of the filings comes just ahead of Ohio’s one-year statute of limitations for medical malpractice. The statute of limitations for wrongful death is two years.

“Approximately a year ago, an isolated and unfortunate incident occurred at Montefiore regarding COVID-19 testing,” Beth Silver, director of public relations and marketing for Menorah Park, wrote in an Oct. 12 emailed statement to the CJN.

“Consistent with our mission and values, our response was quick, straightforward and honest. We also made certain to inform those closest to us including our residents, families, staff and board. We acted in full knowledge that our decision would likely lead to some people choosing to sue. Accordingly, we weren’t surprised that close to the time of the anniversary of our notifications, a number of lawsuits would be filed.”

 “While we continue to address the repercussions of the incident from a year ago, we want to thank our caring community and the broader community-at-large for all of the support we have received over the past year,” Silver wrote. “We especially want to offer our thanks to the community for acknowledging our heroic staff who have shown up every day during this pandemic to do the essential work of caring for your loved ones with dedication. Thank you for continuing to trust and support us. It means so much to us to have the backing of our community at times like this. 

“With regard to lawsuits filed against Montefiore, we continue to respect the process, so we cannot comment on specifics of cases currently in active litigation.”

Hyman’s lawyer, Matthew Gurbach of Bricker & Eckler LLP of Cleveland, wrote the CJN Oct. 13: “Ariel looks forward to being able to present the facts of this case in an appropriate forum, which is a court and not in the media. Ariel has, and continues to, conduct himself professionally and steadfastly denies any wrongdoing.”

The lawsuits filed are listed below.

• Thomas Robenalt of the Robenalt Law Firm Inc. of Westlake sued Sept. 24 on behalf of Thomas Nemeth, executor of the estate of Anthony Berardinelli. Berardinelli was transferred to Montefiore Sept. 1, 2020, was diagnosed with COVID-19 Sept. 24, 2020, and died of SARS-COV2 on Oct. 17, 2020.

Defendants are Montefiore, Montefiore Foundation, Montefiore Home, Montefiore Housing Corporation, Menorah Park Foundation and Hyman. 

Robenalt said Berardinelli’s diagnosis took place prior to Oct. 13, 2020.

“This (testing falsification) was not limited to the well published and admitted false testing by defendants, but went on prior to it being well published and admitted to by defendants …” he wrote.

Robenalt is seeking judgment for his plaintiff “in excess of $25,000” for compensatory damages, pre- and/or post-judgment interest, attorney’s fees, cost of litigation and other relief.

Howard Mishkind of Mishkind Kulwicki Law Co., LPA in Beachwood, filed malpractice, nursing home neglect and wrongful death lawsuits on behalf of children of three deceased residents: 

• Marie Wimberly, the daughter of Vivian C. Wilson. She was admitted to Montefiore for rehabilitation following knee surgery without COVID-19 on Sept. 6, 2020. She left Montefiore on an unspecified date and died Oct. 19, 2020, after being diagnosed with COVID-19, according to the Oct. 4 lawsuit.

• Robyn Finkenthal Kulbarsh, whose mother, Marlene Finkenthal, was admitted to Montefiore July 21, 2020. She was diagnosed with COVID-19 Nov. 3, 2020, and died Nov. 9, 2020, according to the Oct. 5 lawsuit.

• Randy Rosen, son of Rita Rosen, who lived at Montefiore for more than eight years. She contracted COVID-19 on or about Oct. 19, 2020, and died Nov. 1, 2020, of “COVID-19 related complications,” according to the Oct. 8 lawsuit.

Defendants in those three lawsuits are Montefiore, Montefiore Home, Montefiore Foundation, Montefiore Housing Corporation, Menorah Park Foundation, Hyman, Tina King and Marie Gelle. Hyman, along with King, the former director of nursing, and Gelle, the former assistant director of nursing, were fired Oct. 29, 2020, following falsified COVID-19 testing on a single unit in late October 2020 where there were 34 cases of COVID-19 at Montefiore.

“The conduct of the defendants was intentional and/or willful and/or wanton misconduct and represented a conscious disregard for the welfare of patients,” Mishkind wrote in his lawsuits. Mishkind alleges violation of Ohio Nursing Home Patient’s Bill of Rights as well.

Mishkind’s lawsuits request judgment in excess of $25,000, compensatory, exemplary and punitive damages, pre- and post-judgment interest, attorney’s fees, costs and other relief.

Allen C. Tittle of Tittle & Perlmuter in Cleveland filed lawsuits Oct. 5 for the following plaintifffs:

• Nicholas Laudato, the administrator of the estate of Carol Kenney, a Montefiore resident since 2017. Kenney was diagnosed with COVID-19 and died Nov. 7, 2020, of COVID-19, according to the lawsuit.

• Keith Spring, executor of the estate of James Spring, who was admitted to Montefiore after a short hospitalization and died of COVID-19 on Oct. 11, 2020, according to the lawsuit. Spring’s admission date to Montefiore and diagnosis date were not specified, Tittle told the CJN Oct. 12, “because we don’t have the records.”

Defendants are Montefiore Home, Montefiore Foundation, Montefiore of Menorah Park, Menorah Park Foundation Bet Moshav Zekenim Hadati, Menorah Park Center for Senior Living, Hyman, King and Gelle.

“The decisions and directives of the corporate nursing home defendants, as well as defendant Hyman, as to staffing and census, in addition to COVID-19 testing, were determined by the financial needs and goals of the corporate nursing home defendants, not the medical and nursing needs of the residents of the nursing home,” Tittle wrote in his lawsuits.

Tittle’s lawsuits seek judgment for compensatory and wrongful death damages in amounts exceeding $25,000; punitive damages, pre-judgment and post-judgment interest, costs and attorney’s fees, and other relief.

Kenneth Abbarno of DiCello Levitt Gutzler LLC in Mentor filed lawsuits Oct. 7 on behalf of family of residents who were tested Oct. 13, 2020, and later died of COVID-19:

• Ethel Burris, executrix of the estate of Leonard F. Burris, a Montefiore resident since Feb. 3, 2020, and who died Nov. 29, 2020. He was diagnosed with COVID-19 in late October, Abbarno told the CJN Oct. 12, adding COVID-19 “was a byproduct or a cause of death,” according to his death certificate.

• Robert Singer, administrator of the estate of Gloria A. Singer, who moved to Montefiore April 10, 2012. Diagnosed with COVID-19 “on or around Oct. 21,” Abbarno told the CJN, she died Nov. 25, 2020.

• Steven A. Ross, individually and as executor of the estate of Devorah Bette Ross, who died Nov. 15, 2020 of COVID-19, according to her death certificate, Abbarno said. Abbarno said he doesn’t have the medical records and couldn’t provide a date of admission or date of diagnosis.

Defendants in Abbarno’s cases are Montefiore, Montefiore Foundation, Montefiore Home, Montefiore Housing Corporation, Menorah Park Foundation, Hyman, King and Gelle.

Abbarno wrote that testing falsification at Montefiore occurred in both September and October of 2020.

“The medical care and treatment provided … fell below acceptable standards of medical care and treatment in that they did not act in the same manner as a reasonable and prudent medical or health care providers acting in the same or similar situation,” Abbarno wrote, adding defendants breached Ohio Administrative Code and the deaths “were the direct and proximate cause of (their) permanent and substantial injuries.”

Abbarno’s lawsuits seek judgment for not less than $25,000, compensatory and consequential damages, equitable relief, attorney’s fees and costs, punitive damages and other relief.

• Robenalt filed the first wrongful death lawsuit Dec. 15, 2020, for Marsha Mockabee, whose husband, James Mockabee, died Oct. 22, 2020, of SARS-COV2. 

Hyman, King and Gelle were named as defendants along with entities related to Menorah Park and Montefiore. On Aug. 31, King and Gelle were removed as defendants at the plaintiff’s request.

Hyman, King and Gelle are facing criminal investigations by the Ohio Attorney General’s Office, their lawyers said in legal filings.  

Ohio House Bill 606 provides temporary immunity from lawsuits related to the transmission of COVID-19 and went into effect Dec. 16, 2020.

The bill offered temporary immunity to individuals and institutions relating to the transmission of COVID-19. Excluded from immunity were conduct that showed reckless disregard of the consequences, intentional, willful or wanton misconduct, and professional disciplinary actions conduct that constituted gross negligence, according to a summary of the bill offered by the state Legislature.

This a developing story.

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