Articles Posted in Negligent Supervision

A new analysis by Construction Dive asks whether the construction industry has fought the spread of Covid-19 as well as conventional wisdom would suggest.

As the article notes, a potpourri of academic research, public health data, and media reports indicate that the industry has not fared so well. There have been concerning outbreaks across the country, with construction workplaces having the third highest number of outbreaks in Washington and Michigan, and the second highest number of clusters in Nashville, Tennessee. Meanwhile academic research indicates that Texas construction workers are five times likelier to be hospitalized as a result of Covid-19 than workers in other sectors, and a CDC study found that construction sites had the second highest number of cases in Utah.

While construction sites have generally been deemed essential workplaces, experts believe that their mitigation efforts—health screenings, PPE, social distancing—may not be enough to protect workers and communities from the spread of Covid-19. As an official at the Centers for Disease Control told Construction Dive, ““Outbreaks in construction sites may be very common… Capturing data on workplace outbreaks has been challenging for a lot of health departments, so national level data is not available.”

The Occupational Safety and Health Administration recently released a list of its most common Covid-19 citations in construction and other industries, in order “to help employers understand which OSHA standards have been cited most frequently during COVID-19 related inspections.” The document was based on data OSHA maintains regarding its citations and inspections, which it states it initiated after complaints, referrals, or fatalities in various industries, including: “hospitals and healthcare, nursing homes and long term care settings, and meat/poultry processing facilities.”

According to OSHA’s data, the most common citations dealt with respiratory protection. Workplaces were cited for failing to provide a medical evaluation before a worker used or was fit-tested for a respirator; omitting information in workers’ medical evaluations; failing to perform appropriate fit tests; failing to ensure fit tests whenever a different respirator face piece was use; and failing to administer a fit test using a standard protocol.

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Last week Construction Dive, a publication focused on the construction industry, rounded up a number of construction sites across the country that have experienced Covid-19 outbreaks since the pandemic began. As Construction Dive notes, there is no national body tracking outbreaks by industry, but local news sources have kept an eye on their communities, including construction workplaces.

In April, according to Construction Dive, there were at least two Covid-19 clusters centered in a construction site at Donnelly College in Kansas City, Kansas. The clusters affected seven workers, and the construction site “was shut down for disinfecting after each outbreak.” Continue reading

How can construction sites maximize safety during the Covid-19 pandemic? A new column in the Philadelphia Business Journal offers lessons and best-practices from Philadelphia-area job ites.

According to the column, that city’s chapter of the General Building Contractors Association started putting together safety protocols early in the pandemic, and took input from other industry stakeholders like the Building Trades Safety Committee, Med-Tex Services, and the Eastern Atlantic States Regional Council of Carpenters. The coalition met via weekly digital conferences to identify key safety issues and how to deal with them. Said one member of the group, “In a matter of weeks, the group put together a program that every building trades member and contractor in the region, or anywhere in the country, could use.”

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In 2012, a Long Island man, Daniel Sajewski, rammed his father’s red Mercedes-Benz through a Huntington house, narrowly missing the two elderly sisters that lived in the residence. Sajewski was, perhaps predictably, intoxicated – blowing an off-the-chart 0.30 on a breathalyzer, far exceeding New York’s 0.08 limit. In addition to losing their belongings (including a wedding band that could not be located in the rubble), the car accident left the two 90-year-old sisters homeless for several months. In 2013, the judge sentenced Sajewski to one-and-a-half years to three years in prison.

More recently, State Farm, who insured the house that was destroyed, has decided to pursue legal action against Sajewski’s father, the owner of the vehicle. State Farm is seeking $180,000 from the father to reimburse it for the money spent on repairing the home. State Farm is able to pursue this claim because, under New York law, the owner of a vehicle is liable for the damages caused by its drivers – so long as the driver has the owner’s permission to operate the vehicle.  According to the statute, the permission can be expressly stated or implied.

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White Plains Center for Nursing Care received 51 citations for violations of public health laws between 2015 and 2019, according to New York State Department of Health records accessed on November 4, 2019. The White Plains nursing home’s citations, which include 19 more than the statewide average, resulted from five inspections by the state inspectors. The violations described in these citations include the following:

1. The nursing home failed to ensure that residents’ drug regimens were free from unnecessary drugs. Section 483.45 of the Federal Code requires that nursing homes keep “each resident’s drug regimen… free from unnecessary drugs,” defining as unnecessary any drug that is used in an excessive dose, for an excessive duration, without proper monitoring or indications, and/or in the presence of adverse consequences. A March 2019 citation found that White Plains Center for Nursing Care did not ensure that one of five residents reviewed was properly monitored for pain and the effectiveness of pain medication he was receiving. An inspector specifically found that the resident “was receiving Opioid medication on 5 out of 7 days during the assessment period,” but that there was no evidence the resident’s pain level was evaluated before medication was provided. A review of records by the Department of Health found further that the records did not prompt medical staff to document residents’ pain levels.

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Between 2015 and 2019, The Knolls, a nursing home in Valhalla, New York, received 35 citations for violations of New York and federal health laws. That figure is three more than the statewide average of 32 citations, and resulted from a total of four inspections by the New York State Department of Health. According to the Long Term Care Community Coalition, The Knolls is considered a “Special Focus Facility Candidate,” meaning that it has been identified by the Centers for Medicare & Medicaid Services as having a record of poor care that may merit inclusion in CMS’s limited list of facilities that receive enhanced oversight. The violations described in the Department of Health citations, which were accessed on November 4, 2019, include the following:

1. The nursing home did not properly store and label drugs and biologicals. Section 483.45 of the Federal Code states that nursing homes must label drugs and biologicals “accordance with currently accepted professional principles, and include the appropriate accessory and cautionary instructions, and the expiration date.” According to a July 2018 citation, The Knolls kept in storage an emergency box containing “2 vials of medication and 3 normal saline intravenous (IV) flush syringes [that] had past due expiration dates.” A nurse manager told a Department of Health inspector that emergency boxes “are supposed to be checked every night,” and that if materials are expired, a nurse is supposed to send a request to the facility’s pharmacy for replacement. Per a pharmacy consultant interviewed by the Department of Health, the medications in question “should have been removed.”

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Tarrytown Hall Care Center in Tarrytown, New York has received 26 citations for violations of public health law between 2015 and 2019, according to records provided by the New York State Department of Health and accessed on November 4, 2019. The citations resulted from six inspections by the Department, the public entity responsible for enforcing safety and health standards in New York nursing home facilities. The violations described in these citations include the following:

1. The nursing home failed to ensure its residents’ freedom from abuse and neglect. Nursing home facilities are required by Section 483.12 of the Federal Code to respect their residents’ right “to be free from abuse, neglect, misappropriation of personal property, and exploitation.” A January 2019 citation described Tarrytown Hall Care Center’s failure to ensure one resident’s right to be free from abuse in a situation where, after that resident struck a Certified Nursing Assistant, that assistant “responded by tossing liquid from a cup he was holding in his hand directly towards [the resident’s] upper body and face area,” then pushing that resident’s wheelchair into a hallway, where another assistant had to intervene to stop the rolling wheelchair. The citation notes that the resident in question was “severely cognitively impaired” and dependent on a wheelchair for mobility and personal assistance to move around the facility. 

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Beacon High Principal said she “made a mistake” by overlooking safety procedures that led to the unfortunate disfigurement of a student when a chemistry experiment went awry in 2014. According to The New York Daily News, a chemistry teacher at the prestigious Manhattan school created a fireball in the classroom in a “rainbow experiment.” According to the newspaper, this chemistry experiment involves “pouring a one-gallon jug of methanol directly onto hot Petri dishes… producing multi-colored flames.”

Unfortunately, the experiment went awry and Alonzo Yanes was horrifically burned. Medical reports show that the high schooler spent months in the hospital recovering and required skin grafts on more than 30 percent of his body. Testifying before the court in Manhattan, Yanes said he lives with excruciating pain and a permanently disfigured body. According to the teacher, she performed the experiment correctly although safety experts testified that pouring the methanol from a beaker instead of directly from a jug could have prevented the disaster.

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Sprain Brook Manor Rehab in Scarsdale, New York received 40 citations for violations of public health laws between October 2015 and September 2019, according to the New York State Department of Health records accessed on November 4, 2019. The citations resulted from eight inspections by the Department of Health, the public entity tasked with overseeing health and safety standards in nursing home facilities; the statewide average is 32 citations. The violations described by the Department’s citations include the following:

1. The nursing home did not ensure the competency of its nursing staff. Section 483.35 of the Federal Code requires nursing home facilities to employ “sufficient nursing staff with the appropriate competencies and skills sets” to care for residents. A May 2019 citation found that Sprain Brook Rehab did not ensure that its Certified Nursing Assistants “demonstrated competency to provide safe care and respond to individual needs” for one of three residents reviewed. An inspector specifically found that the resident, who was unable to stand and needed assistance to transfer with the aid of a mechanical device, was transferred by nursing assistants when that device was not functioning, but that the assistants did not inform the nurse or seek “guidance for how to safely transfer the resident.” The inspector noted that the resident described feeling pain when she was being transferred.

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