TGIF! Within a busy econ news week, a little litigation matter slipped into my news stream. These cases are fascinating as we continue to see the pandemic litigation trickle forward and the novelty of claims arising from the pandemic period/Public Health Emergency period beginning to define the litigation playing field.
Readers/followers know by now that my firm, H2 Healthcare (www.h2healthllc.com), has a strong compliance and litigation practice – among the best in the nation. We handle complex litigation matters, investigating and where required, providing expert witness support on actual harm and wrongful death cases. As a result, we pay close attention to cases involving wrongful death/harm and nursing homes, senior living, etc., encompassing the pandemic period.
This case includes an interesting twist as it does and does not, relate to COVID.
The case comes via the State of New York and the Supreme Court of Richmond County. The Plaintiff (estate) in the case was an elderly man that had resided in a nursing home (Richmond Center for Rehabilitation) for four years until his death in late 2020. During his residency, in 2020, he contracted COVID but did not die from it, instead living seven more months until his passing. He died from complications/and conditions including osteomyelitis, pressure ulcers, chronic C-Diff and sepsis.
The allegation is that “The defendant failed to maintain an infection control program before and during the COVID-19 pandemic designed to provide a safe, sanitary and comfortable environment in which residents vulnerable to infection reside and where healthcare provider[s] work [and] defendant failed to have an infection control program which investigated, controlled and took action to prevent infections in the facility.”
The Plaintiff also noted in their suit that Richmond Center had been cited by federal agencies and regulators 24 times in a four-year period, “including for failure to ensure that an infection prevention and control program was maintained to help prevent the development and transmission of communicable diseases and infections.”
The facility (Richmond) asked the Supreme Court for Richmond County to dismiss the gross negligence and wrongful death claims. Even though the resident’s death was not from COVID, Richmond argued that claims about its infection control policies and practices during the pandemic were covered by both New York’s Emergency Disaster Treatment Protection Act (EDTPA) and the federal Public Readiness and Emergency Preparedness (PREP) Act. These immunity-oriented provisions were designed to give providers protection against reprisal provided the care delivered during the Public Health Emergency was compliant with relevant recommended, infection control practices. Last year I wrote a post that covered the PREP Act and the implications of liability during COVID – https://rhislop3.com/2023/10/13/friday-feature-sr-living-health-care-and-covid-litigation/
Other courts have found that impacts on operations encompassing care, due to COVID outbreaks or other COVID-related limitations also would protect healthcare providers from such civil suits. In a Connecticut case last year, the state Supreme Court found that COVID-related understaffing that affected patients without COVID was still protected.
In this case, the ruling to dismiss was denied. The language framing the denial is here: Defendant RICHMOND CENTER FOR REHABILITATION AND SPECIALTY HEALTHCARE negligently breached its duties owed to plaintiff’s decedent by statute and common law; that as a result of the foregoing acts and/omissions, Plaintiff’s decedent VIBERT YEARWWOOD was subject to the negligence of the defendants, causing decedent VIBERT YEARWWOOD to be forced to undergo medical treatment, incur medical expenses, suffer permanent disfigurement, disability, pain and suffering, mental anguish, loss of enjoyment if life, loss of dignity and death.
Based upon the documentary evidence submitted by the defendant, defendant fails to meet its burden of proof to unambiguously or conclusively dispose of all of plaintiff’s factual allegations as a matter of law. Defendant’s motion to dismiss pursuant to CLR 32111(a)(1) is denied.
A link to the full decision is here: https://caselaw.findlaw.com/court/ny-supreme-court/115852489.html
The decision can be appealed (likely). What I/my firm will watch is how cases like this, and this one, proceed or not, under the auspices of the PREP Act. The test, I believe, is how far the court and various plaintiffs and defendants will go to narrow or expand, the concept of “willful misconduct”” which, in the PREP Act language, is an exclusion for liability protection. The applicable language is below. TGIF!
The Public Readiness and Emergency Preparedness Act (PREP Act) authorizes the Secretary of the Department of Health and Human Services (Secretary) to issue a PREP Act declaration. The declaration provides immunity from liability (except for willful misconduct) for claims:
- of loss caused, arising out of, relating to, or resulting from administration or use of countermeasures to diseases, threats and conditions
- determined by the Secretary to constitute a present, or credible risk of a future public health emergency
- to entities and individuals involved in the development, manufacture, testing, distribution, administration, and use of such countermeasures
A PREP Act declaration is specifically for the purpose of providing immunity from liability, and is different from, and not dependent on, other emergency declarations.
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