Gary Hein, a resident of the El Castillo retirement community in Santa Fe, New Mexico, and lawyer Pierre Levy were handed a legal victory earlier this week after filing a lawsuit against the New Mexico Department of Health (NMDOH) and its COVID-19 public health emergency order pertaining to nursing homes.
According to the lawsuit, Hein, like other New Mexicans, was denied his constitutional right when he was disallowed daily visits with Anna Severine, his 80-year-old wife who lives in the memory care unit of their retirement community. Hein claims the decrease in visits and lack of physical touch has accelerated her dementia-related decline.
State District Judge Matthew Wilson appeared to agree with Hein and Levy in his recent ruling, which grants Hein's request for a preliminary injunction and calls on the NMDOH to revise the order's language to consider the constitutional rights guaranteed to nursing home residents and their families.
“Loss of familial association for even minimal amounts of time constitutes irreparable injury,” Wilson wrote on Monday, as reported by the Santa Fe New Mexican. “Nothing, such as video conferencing, is a substitute for in-person, physical contact with a loved one.”
Levy initially filed a complaint against the NMDOH in September after he was blocked from visiting his dying mother who lived in a specialty care area. While her death that same month ended his case, Levy and Hein later teamed up to file this ongoing lawsuit.
Levy detailed to the Sante Fe New Mexican that the lawsuit arose somewhat organically, as he ran into Hein several times over the years while visiting his mother in the memory care unit of the retirement home.
“He was frequently there and we became acquainted because he was devoted to his wife and I was devoted to my mother ... And both he and I wanted to make sure our respective family members had love, guidance and support," he said.
“The harm that Mr. Hein and Ms. Severine are suffering by being denied their right to association outweighs any burden on the Secretary to make sure that the Constitution is taken into account when executive orders are issued,” Wilson added in his ruling.
However, New Mexico's health secretary also has the opportunity to update the government order and return to the court.
Hein told the court that he has not given up hope that he will be able to physically meet up with his wife, even though much of her "personality and life is leaving" due to dementia.
“I know if the tables were turned, she would be caring for me. She is the best thing that’s ever happened to me in my life,” Hein told KOAT.
As of this article's publication, the NMDOH has logged 141,186 positive COVID-19 diagnoses out of 1,954,680 total novel coronavirus tests performed in the state since the contagious disease was identified. At least 2,436 related COVID-19 deaths have been recorded in New Mexico.