In March 2020, New Jersey Governor Philip D. Murphy issued an executive order declaring the COVID-19 pandemic a public health emergency. Three weeks later, New Jersey Department of Health Commissioner Judith M. Persichilli issued a directive to implement the executive order. To ensure hospital bed capacity, the directive prohibited post-acute care facilities such as nursing homes from (1) denying admission or re-admission to patients/residents who tested positive for COVID-19 or (2) requiring hospitalized but “medically stable” patients/residents to be tested for COVID19 before admission or re-admission.
Two weeks before its issuance, the Centers for Disease Control and Prevention published a report advising that
substantial mortality might be averted if long-term care facilities acted quickly to prevent exposure of their residents to COVID-19. But New Jersey had no plans in place to distribute personal protective equipment (“PPE”) to nursing homes at the time of the directive, despite warnings from facilities that they did not have the PPE supplies necessary to manage patients from hospitals. Further, most nursing homes are small, older buildings without upgraded ventilation. Nevertheless, the revenue associated with hospital patients incentivized nursing homes to accept them.
Approximately 10,000 elderly residents of New Jersey nursing homes and veterans’ homes died during the COVID-19 pandemic. Three of their estates sued the New Jersey Governor, New Jersey Health Commissioner, and other New Jersey officials, attributing these deaths to a flawed public health policy that deliberately under-prioritized the safety of nursing homes. Plaintiffs brought claims under the United States Constitution and the Federal Nursing Home Reform Act (FNHRA), 42 U.S.C. § 1396r. The District Court granted the State officials’ motion to dismiss on the basis of qualified immunity.
Qualified Immunity
Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct. Qualified immunity protects even those officials who exercise extraordinarily poor judgment from liability for civil damages unless a plaintiff can
satisfy the requirements for overcoming it. To do so, a plaintiff must make two showings: one is that the defendant’s
conduct violated a statutory or constitutional right; the other is that the right at issue was clearly established when the conduct took place.
The United States Court of Appeals for the Third Circuit stated in its January 23, 2026 Opinion: “By the waning of the pandemic, New Jersey’s nursing homes had a per-capita COVID-19 death rate of 16%, the worst in the country. Approximately 10,000 elderly residents of nursing homes and military veterans’ homes died in New Jersey. These
included the decedents in this case, each of whom died a week after he or she was diagnosed with COVID-19. Eventually, New Jersey reached a $53 million settlement with the families of 119 seniors who died in state-run veterans’ homes.”
“Because Plaintiffs have not alleged the violation of a clearly established right, none of their constitutional claims survive Defendants’ qualified immunity defense.”
“We do not doubt the pain of Plaintiffs’ losses during the pandemic or the imperfection of New Jersey’s response to it. But qualified immunity gives State officials “the benefit of all reasonable doubt in the exercise of their professional duties.” Sauers, 905 F.3d at 719–20. To overcome qualified immunity, the law requires certain showings, and Plaintiffs fall far short of making those showings. Therefore, we must affirm the District Court’s determination that Defendants are entitled to qualified immunity and its dismissal of the claims against them.”
Source Estate of Frances D. DeRosa v. Governor Philip D. Murphy, No. 25-1283.
If you or a loved one may have been injured (or worse) as a result of medical negligence in New Jersey or in another U.S. state, you should promptly find a New Jersey medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.
Click here to visit our website or call us toll-free in the United States at 800-295-3959 to find medical malpractice attorneys in your state who may assist you.
Turn to us when you don’t know where to turn.
