Montefiore is bracing for “significant damages” as a result of a falsified COVID-19 testing incident in October, according to an April 12 counter lawsuit against two nurses in Cuyahoga County Court of Common Pleas.
Montefiore in Beachwood has received or will receive civil fines and penalties imposed by the Centers for Medicare & Medicaid Services, the Ohio Department of Health and legal fees relating to investigations by the Ohio Attorney General, Ohio Department of Health’s fraud and abuse unit, and the Ohio Board of Nursing.
Robert Pivonka, a lawyer for Montefiore, wrote in a countersuit against two nurses, “Residents of (unit)Mandel 3 who contracted COVID-19 also have sued and/or threatened to sue Montefiore and the facility faces potential liability for such claims.”
Montefiore’s top two nurses sent falsified samples for COVID-19 testing to Cleveland Clinic on Oct. 13, 2020, yielding negative tests. Days later after retesting, 33 residents on a single unit tested positive for COVID-19.
Tina Renee King, Montefiore’s former director of nursing, and Marie Gelle, the former assistant director of nursing, along with Ariel Hyman, Montefiore’s administrator, were fired Oct. 29, 2020, according to Menorah Park President and CEO Jim Newbrough, who oversees Montefiore following a July 1, 2020, affiliation between the two nursing homes.
On April 12, Pivonka of Rolf Goffman Martin Lang LLP in Pepper Pike filed an answer for the defendants in which he denied the nurses’ claims. In addition, he filed a counterclaim against King and Gelle, suing the two nurses.
Pivonka wrote King and Gelle “breached their duty to act in the utmost good faith and loyalty” by submitting falsified testing swabs. He said they “failed to exercise reasonable care and diligence in the performance of their duties.”
On behalf of Montefiore, Menorah Park and other defendants, Pivonka is seeking at least $25,000 in damages, attorneys’ fees, non-taxable and taxable costs and other relief from King and Gelle.
Beth Silver, director of public relations and marketing for Menorah Park, had no comment on the counterclaim that Pivonka filed.
“We will not be making any comments regarding this lawsuit while litigation is ongoing,” Silver wrote in an April 13 email to the Cleveland Jewish News.
In their lawsuit, King and Gelle alleged misjudgment and mismanagement on the part of upper management at the Beachwood nursing home through their lawyer, Steven A. Sindell of Sindell & Sindell, LLP of Beachwood. The two nurses also sued for wrongful termination, defamation of character and for tortious interference with economic business and contacts.
Multiple attempts to reach Sindell for comment were unsuccessful.
Newbrough wrote in an Oct. 29, 2020, letter to residents and families that King and Gelle failed to follow official protocols, procedures and nursing standards. In addition, Newbrough wrote Hyman “failed to oversee the situation appropriately.”
In the same letter, Newbrough said the nursing home self-reported the incident to federal and state oversight authorities and that Montefiore and Menorah Park would cooperate with investigations. Hyman was not named in King and Gelle’s lawsuit either as a plaintiff or defendant.
The first lawsuit by a Montefiore resident or family member of a resident for the testing falsification was filed Dec. 15, 2020 by Marsha Mockabee, whose husband James R. Mockabee, died Oct. 22, 2020. He had been admitted to Montefiore Sept. 23, 2020, without COVID-19 and contracted the virus at Montefiore, according to the lawsuit filed by Thomas Robenalt of The Robenalt Law Firm Inc. of Rocky River.
In Newbrough’s April 8 COVID-19 update, he wrote, “Locations throughout our Menorah Park community are experiencing little to no new cases of COVID-19. Existing cases are primarily asymptomatic and visitation schedules will continue to be adjusted (currently only Menorah Park) and communicated through Life Enrichment based on guidelines set by the Ohio Department of Health and Centers for Medicare & Medicaid Services. We continue to appreciate everyone’s best practices in safety protocols including wearing masks covering both nose and mouth, washing and sanitizing hands frequently, maintaining proper distance according to guidelines and using additional PPE as needed.”